Congress can use it’s spending power, to pick one example.
And yes, if that one individual is the President.
For (a) I would recommend reading:
Henkin, “The Use of Force: Law and US Policy,” Right v. Might: International Law and the Use of Force 37 (1989)
Reisman, “Criteria for the Lawful Use of Force in International Law,” 10 Yale Journal of International Law 279 (1985).
Generally speaking, I would say that based on the Nicaragua case that because of the multilateral treaty reservation attached to the US’s acceptance of the ICJ’s jurisdiction, that 2(4) wouldn’t actually be able to be applied in this instance. So, any real claim as to violation of international law would probably have to be made under customary law or jus cogens (like in that case), but those kinds of holdings aren’t very impressive for reasons I’m sure you’re aware of.
Well, here’s what Obama’s take on it is. Well, was: ““The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation”
Apparently, yes, he can legally send in the missiles or jet strikes or naval bombardment, and has two days to tell Congress about it officially and ask them to say it was okay, and sixty days before he has to stop if they don’t say okay. (They have a kind of pocket veto.)
Personally, I think he should ask Congress first. It puts the political burden on them. It would also be really funny to watch them fluster around. They hate Obama…but they also love to drop bombs on foreigners. McCain has been arguing for an attack for a while now: would he bring the rest of his party along? And the Democratic response is also amusing: would they support the President, or would a sizable peace faction defect and vote against an authorization act?
I would also like to see the WPA taken up by the Supreme Court. My suspicion is that they would refuse to interfere. The WPA has worked well enough over the past few decades. I personally believe it is constitutional, as Congress has the power to “declare war.” The act is a nice compromise, giving the President flexibility in urgent cases. James Madison didn’t need to make decisions like this on a minute-by-minute basis, but modern Presidents do.
International law is largely irrelevant as applied to the United States. We have a veto in the Security Council, and the General Assembly can’t really do anything that matters.
On the domestic side, I don’t think any POTUS has acknowledged the War Powers Act as limiting their authority as Commander in Chief. SCOTUS hasn’t had the opportunity to consider it, and frankly, I seriously doubt they ever will. If Obama tells the military to attack Syria, the military will attack Syria. As long as Obama does not attempt to send in ground troops, Congress is not going to attempt to cut the purse strings.
TL;DR–it’s a moot point. No legal action is going to stop Obama from doing whatever he decides to do.
Nope, on both counts.
http://www.law.cornell.edu/uscode/text/50/1543
Doesn’t say anything about seeking a declaration, just a notification.
50 U.S. Code § 1544 - Congressional action | U.S. Code | US Law | LII / Legal Information Institute
There has to be some identifiable international consensus. Otherwise it’s going to be rather difficult to tell the difference between military action against Syria because we don’t like Syria versus military action against Syria because they used chemical weapons. Unilaterally deciding that somebody else is using chemical weapons is, as you may recall, a bad idea.
International Law
No. There has to be a UN resolution authorizing us to act or we must act in self defense (or in the self defense of another member state). That’s not the case here (leaving aside quibbles over whether Syria attacked Turkey). Thus, there’s no concrete international law basis for an attack.
However, there is a push for a “humanitarian” exception to the above. It’s not accepted as customary international law (yet), but it is the basis the UK is using for an attack against Syria.
Of course, history suggests it doesn’t matter whether it’s legally justified or not. We do what we want.
So which is it? “Some identifiable international consensus,” or specifically “a UN resolution authorizing us to act?”
Just for context (not that it changes anything), that quote is from a 2007 interview of candidate Obama by the Boston Globe:
It’s a UN authorization or acting in self defense. All other acts of war against another country are illegal. History suggests there is no punishment for not getting the authorization, obviously.
The significance of the use of nerve gas on a country’s own population invokes the humanitarian exception. Except there’s no basis in law for the exception and the UK offers none when they explain intervening in Syria because they used it is legally justifiable. You still need UN authorization to attack another country.
Bricker,
Have you seen Eric Posner’s article in Slate on the legality of the U.S. using force against Syria? The article’s title should be a clue as to his conclusion: The U.S. Has No Legal Basis to Intervene in Syria. It seems to be relevant to your question, especially the idea that the U.N. Charter would be the governing international law.
Tom, do you think that’s an accurate statement of domestic law? I don’t. I think Obama was wrong in 2007 when he said it.
A UN resolution is the most obvious manifestation of consensus but it’s a bit artificially limiting to say it’s the only one. If Syria were a member of the Gulf Cooperation Council it would be hard to argue that that organization could not authorize the use of force.
Here is the relevant portion of the law:
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to
(1) a declaration of war,
(2) specific statutory authorization, or
(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
Obama’s statement:
The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
If Obama was wrong, then it seems he was wrong in the leniency of the statement - it seems according to the language of the law that the “threat” is not enough, it has to be an actual attack.
(A) It’s not
(B) Even if it were, I don’t see what in the membership agreement would allow this (although admittedly that didn’t stop them from messing with Bahrain last year)
I agree the law so states.
But I argue that the law is an impermissible infringement by Congress on the President’s Article I power.
If that’s what he believes, I wonder if he ever expressed an opinion of Clinton’s Wag the Dog operation.
And he cannot proceed with any attacks on Syria until he gets a resolution of approval from Congress.
Or maybe he had his fingers crossed in 2007.
Regards,
Shodan
But in the context of the law, Obama was not wrong in 2007. And he obviously didn’t consider it an “impermissible infringement” then.
As for the law being unconstitutional - that’s for SC to decide, isn’t it? Did the Obama administration ever explicitly state that they will not be following that law because they consider it unconstitutional?
Two words: political question. SCOTUS won’t go near this one with a pole.