WASHINGTON, D.C.-Sept. 11, 2013. President Obama's request for authorization to carry out air strikes against Syria failed to be approved in the Congress today.
In a short statement following the 275-260 vote to deny his request, President Obama said, "The vote will not stop the necessity of punishing the Assad regime for using chemical weapons to slaughter its own people. As I said in the Rose Garden on August 31, I I have the authority to carry out this military action without Congressional authorization. I am therefore ordering US forces to proceed with the attacks."
In his Rose Garden remarks today on Syria, President Obama said that he will seek a vote of authorization from the Congress when it returns from recess (which is on Sept. 9).
He also said has authority to bomb Syria without Congress' authorization. Here is the entire statement:
In his statement, the president also said this: "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."
Let's parse that.
1. He means that he thinks he has authority as president to bomb Syria without going to Congress at all.
Well, in that case he may be right, in the sense that any president has the power to do what Congress doesn't oppose. Obama illegally sent US bombers against Libya in 2011 without Congressional authority; by any stretch, the president was both declaring and making war, the former power reserved to the Congress alone.
But history, and not just of this administration, shows that Congress will usually be pretty passive about that kind of thing. The White House does not have that power so much by delegation as by concession.
However, there is another twist to what Obama might have meant that would require him to believe this, which is,
2. He means that even if Congress votes against authorizing the Syria war, he can still order the strikes because he didn't have to ask Congress in the first place.
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.
A military officer's oath of commissioning says,
I ... do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; ...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, 0710 CDT Sept. 1: David Gregory just said on NBC News morning newscast that Obama has made up his mind to attack Syria and that he will order it no matter what Congress votes.
This has all the makings of a nightmare in the making.
Update: I should add the the officer's oath of commissioning is established by Congressional enactment.