Tuesday, November 18, 2014

Congress Needs to Do Its Job

Daniel Larison is writing about one of his pet peeves:
Virginia Sen. Tim] Kaine’s point [on Congressional abdication and presidential overreach] is well-taken, and this is one more reason why the war against ISIS needs to be debated and voted on in spite of the president’s pretense that he doesn’t need Congressional approval. It is profoundly wrong to commit the U.S. to military action without having first considered the merits of the operation publicly and deliberately, but there is something even worse. It is even worse to commit the U.S. to a war that isn’t necessary for American security whether Congress has gone through the motions of a debate or not.... [Kaine is correct that Congress mustn’t be permitted to keep dodging its responsibilities on matters of war, and presidents mustn’t be allowed to wage wars without Congressional approval, but it’s even more important that members of Congress break the habit of signing off on the latest elective war. It is Congress’ habitual deference to bad presidential judgment on matters of war that is even more appalling than its refusal to debate and vote on the wars presidents choose to start. That can’t be fixed without first reviving Congress’ role in the process, but simply getting Congress to debate and vote on these wars is also woefully insufficient.
When I read Larison's complaint about a Congress that refuses to debate war, or that is excessively deferential to requests for the authorization to start or continue a war, I couldn't help but think of Ross Douthat's complaint that the constitution will be ruined if a Democratic president follows the lead of past Republican presidents and achieves by executive order what Congress has failed to accomplish through legislation. The sort of, "Wars, drones, security state, black hole prisons, torture, whatever.... immigration is serious argument that, to me, represents the worst form of missing the forest for the trees. Congress can pass legislation in response to an executive order, often long before the order takes effect. Congress can't unstart a war.

There is no hypocrisy in Larison's criticism of President Obama. Larison has consistently argued against the type of overreach he describes in Obama's actions. He is an established opponent of military adventurism and wars of choice. He's correct, in my opinion, that the nation would be well-served by Congress doing its job, by not turning a blind eye to unilateral military action by the President or granting its blessing after-the-fact. Larison is unimpressed with past Congressional debates over war authorization, and understandably so, but I'm not sure what the remedy would be short of electing different representatives.

My first reacton to Douthat's over-the-top rhetoric on how immigration reform could destroy our way of life (I exaggerate slightly) was that it was another example of Douthat writing about something that he doesn't understand. The blog posts that follow his editorials sometimes suggest to me that he encounters the basic facts and competing interpretations for the first time only after he publishes an editorial, with his making a strong, subsequent effort to reconcile the facts with his already-established opinion. In relation to unilateral war action, I found this complaint about the President's decision to go to Congress before waging war on Syria:
It would be a good thing for the country if the older constitutional norms regained some force – if we declared war in cases where we now issue so-called authorizations for the use of military force, and issued authorizations in situations where presidents of both parties claim the power to act with no congressional blessing whatsoever. But when a constitutional power atrophies, it’s extremely unlikely to be restored through the kind of last-minute, poorly-thought-out, and self-undermining approach that the White House has taken in this case.
You see, in Douthat's mind the President should have spent months reminding Congress that it has a role in debating the wisdom of involving a nation in a war, and should not have surprised them at the last minute by suggesting that they fulfill their constitutionally defined role. Douthat carries on at some length about legality and morality, bou don't have to spend much time reading between the lines to see what Douthat is actually thinking: He supported intervention in Syria, Congress voted against it, and it was thus wrong for the President to have gone to Congress.
Going to Congress is entirely optional, and it’s what presidents do when they’re pitching wars that they themselves don’t fully believe in, and need to rebuild credibility squandered by their own fumbling and failed alliance management. What future White House would look at that example and see a path worth following?
You see, where the Congress specifically addresses and issue and dictates how wars are to be declared, it is nothing short of weakness for a President to give anything more than lip service to those requirements. That's certainly not what Douthat would want a future president to do. You only destroy the constitution by acting in a legal manner, consistent with its terms, in the face of Congressional inaction, and in a context in which Congress is free to legislate on the issue, not by ignoring its explicit terms and launching wars that cannot be undone.

Douthat also complains,
Ah, you might say, but if Congress actually votes the Syria authorization down, then future presidents will feel constrained by the threat of a similar congressional veto whether they want to emulate Obama or not. Except that it’s actually more likely that future presidents will look at a congressional rejection in the case of Syria and see a case for going to Congress even less frequently than recent chief executives have done.
The problem with that conceit should be obvious: Congress does not have to wait for an invitation before it takes up the issue. Congress can look at a crisis in a nation like Syria and, on its own initiative, take up the question of whether military intervention is appropriate. It can pass resolutions urging the President to act. It can pass authorizations giving the President the power to Act. Or it can do the opposite, using its power of the purse to withhold funding for military action that it deems unwise. The question of whether or not Congress acts is not one that is controlled by the President -- it's controlled by Congress itself.

Douthat closes with the same sort of trademark silliness that he used in his immigration editorial,
It is just possible, I suppose, that if Congress votes “no” on this resolution and then the president unwisely goes ahead with strikes anyway and then the House impeaches the president for violating his oath of office... and then the whole thing spirals out into a wild constitutional crisis that leaves this administration permanently crippled, the end result of that crisis could conceivably reshape the White House/Congress balance of power on foreign policy, and leave future administrations more constrained.
Turning briefly to the Constitution, Article I, Section 8,
The Congress shall have Power... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Congress does not need to wait for a president to invite it to participate in a decision to start a war, or to sit on its hands until a president ignores its refusal to authorize war. It can initiate impeachment proceedings any time a president launches a war without its authorization. Congress has done its best to avoid having to take up its constitutional duties, from passing the War Powers Resolution, an ostensible check on presidential power that is effectively treated as a delegation of constitutional responsibility, to allowing the President to declare that pretty much any military action taken by the United States -- even an action explicitly targets a single country for invasion with the purpose of removing and replacing its leadership -- as a "police action".

Whatever temptation might exist to suggest that what we're looking at is a political debate, with Larison supporting a framework that limits international adventurism and Douthat embracing a President's right to unilaterally engage in that sort of adventurism in the role of "world policeman", the text of the Constitution plainly favors Larison. At the same time, it's difficult to avoid seeing Douthat's positions as being driven by anything other than politics. When it comes to war, he doesn't seem to care what the Constitution says, and if anything he is concerned that a president's respect for the Constitution would be too constraining. When it comes to the issuance of executive orders that are consistent with both the law and Constitution, at least when he opposes the outcome, taking action by executive order usurps the authority of Congress and threatens our system of government (never mind that, at all times, Congress remains free to act).

At the end of the debate, though, it boils down to the same fundamental issue: If Congress cannot or will not do its job, the President is likely to look for ways to act unilaterally. In my opinion it's worse in a context like war powers, where Congress has a clear, constitutionally defined role and, instead of fulfilling that role, effectively encourages the President to act unilaterally. Congressional deference to the President on matters that arguably should have required a formal declaration of war did not begin in the 20th Century -- it's a long-standing problem that became particularly glaring when Congress allowed presidents to launch the Korean and Vietnam wars as "police actions". Larison can complain that the President is operating under a pretense that he does not need Congressional approval for military action in Syria, but it's only a pretense if Congress is willing to act. If Congress won't call for a vote, and won't impose any consequence on unilateral action by a President, then (constitutionally or not) Congress has effectively delegated its war-making power to the President. Douthat can whinge that the President should not engage in perfectly lawful action to bypass Congressional gridlock, but again it's only an issue if Congress refuses to act.

Either way, nothing is going to change until Congress decides to start doing its job.

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