“Doctor… always do the right thing.”

Things have been quiet here, because it’s been a busy, busy late summer. But since I hammered President Obama pretty hard a couple of years ago for failing to get congressional approval for his adventure in Libya, I wanted to go out of my way to commend him for (however grudgingly) doing the right thing this time:

U.S. President Barack Obama wants lawmakers to weigh in on whether to use military force in Syria.

Obama sent a letter to the heads of the House and Senate on Saturday night, hours after announcing that he believes military action against Syrian targets is the right step to take over the alleged use of chemical weapons.

The proposed legislation from Obama asks Congress to approve the use of military force “to deter, disrupt, prevent and degrade the potential for future uses of chemical weapons or other weapons of mass destruction.”

Of course, the President gives with one hand and takes away with the other:

In a televised address from the White House Rose Garden earlier Saturday, the president said he would take his case to Congress, not because he has to — but because he wants to.

I think that’s wrong — for all the reasons I stated back in 2011, I think he does have to get authorization from Congress under the War Powers Resolution, which I think is constitutional, though others disagree.

The Supreme Court has so far avoided a definitive ruling, while lower courts have tended to find questions about WPR violations “non-justiciable,” which you may recall from some previous posts is judge-speak for “We’re not touching that shit.”

There are some non-trivial reasons why courts (well, mostly the district court for D.C.) might not want to touch that shit, such as (a) not wanting to interfere in spheres the Constitution assigns to the other branches; (b) lack of a judicially cognizable standard to apply; or (c) lack of proper standing on the part of those bringing the suit.

What’s interesting is that in the cases I’ve been able to find, the district court generally does not rely on rationale (a) when refusing to adjudicate violations of the War Powers Resolution. In Campbell v. Clinton and Kucinich v. Obama, the court held that individual members of Congress did not, on their own, have standing to assert a violation, while in Lowry v. Reagan and Crockett v. Reagan, the court held that it could not engage in fact-finding as to whether U.S. forces were engaged in “hostilities” within the meaning of the law. Neither of these objections to hearing cases based on the WPR is rooted in a sweeping prudential or constitutional principle that courts should not interfere in the political branches’ decisions regarding the conduct of war. Rather, as the following passage from Lowry makes clear, the usual objection has been that the suit does not represent the whole Congress:

Before the filing of this lawsuit, several bills to compel the President to invoke section 4(a)(1) of the War Powers Resolution were introduced in Congress. Bills also were introduced to alternately repeal and to strengthen the War Powers Resolution…. In light of this history, this Court concludes that plaintiffs’ dispute is “primarily with [their] fellow legislators.”

This Court declines to accept jurisdiction to render a decision that, regardless of its substance, would impose a consensus on Congress…. Moreover, in view of a sponsor’s statements that the determination of “hostilities” under the War Powers Resolution is a question for the executive and legislative branches, federal jurisdiction would be especially inappropriate in this case.

Judicial review of the constitutionality of the War Powers Resolution is not, however, precluded by this decision. A true confrontation between the Executive and a unified Congress, as evidenced by its passage of legislation to enforce the Resolution, would pose a question ripe for judicial review. Even if such a lawsuit were brought by congressional plaintiffs, judicial review would not be precluded on equitable grounds because the Court would not be interjecting itself into legislative debate.

In other words, the D.C. district court, at least, is open to refereeing a dispute between the executive and the legislature regarding constitutional war-making powers. But it’s up to Congress to exert its rights as a “unified” body, by passing legislation (1) making a finding of “hostilities” within the meaning of the act, and (2) condemning an unauthorized act by the President. Dennis Kucinich may not sue for Congress’s rights on his own; Congress must act as a whole.*

*The Supreme Court has recently flirted with allowing representative groups to assert Congress’s rights — in the Windsor case striking down a portion of DOMA, for example. But DOMA did not involve a dispute over the allocation of constitutional powers; I suspect that before a court moved to limit the fundamental powers of at least one of the other two branches, it would require absolute clarity on both standing and a finding of “hostilities.”

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