Originalism sits uneasily with the concept of independent agencies, and textualism raises questions about the basis for some agencies' independence.
I was please to hear that President Obama will be seeking congressional authorization to take action against Syria, even though his announcement is accompanied by the claim that he believes he already has the power to attack Syria. Based on Mike Ramsey’s work in this area, I believe that the Constitution’s assignment to Congress of the power to declare war indicates that it is Congress that has the power to initiate wars against other countries, not the President. Moreover, I also believe, as Mike has argued, that an attack on weapon stockpiles of another country would be an act of war.
While Mike’s work on the power to declare war is well known, it should be noted that it was truly pathbreaking, as it explained how a clause that spoke of “declaring war” could operate to govern not simply announcing a war, but initiating a war without an announcement. It is a great example of how the originalist work of the last two decades has taught us about the meaning of our Constitution.
I believe it is desirable that President Obama seek congressional authorization even though it is quite likely that he is doing so only for political cover. In our world, constitutional principles are often followed because of concern about the political consequences. And we can hope that if the constitutional principles are followed often enough, even if only due to political considerations, that they will come be seen as mandatory.
In recent years, there have been several precedents for Presidents seeking Congress’s approval to initiate wars. George W. Bush sought Congress’s authorization for both of his wars in Afghanistan and Iraq. Sadly, though, Obama’s attack in Libya and Bill Clinton’s in Kosovo did not seek congressional approval. But Obama’s request for authorization here will make it easier in the future to argue that such authorizations are constitutionally required.
Update: Glenn Reynolds makes this interesting suggestion: “If I were the Congressional leadership, I wouldn’t take a vote unless Obama promised to abide by it. Otherwise, what’s the point?”