I have a pretty broad view of presidential power to use military force abroad without congressional authorization. On that view, which is close to the past views of the Office of Legal Counsel, the planned use of military force in Syria is a constitutional stretch that will push presidential war unilateralism beyond where it has gone before. There are many reasons why it is a stretch even under OLC precedents. The main ones, as I alluded to a few days ago, are (1) neither U.S. persons nor property are at stake, and no plausible self-defense rationale exists; (2) the main non-self-defense U.S. interest that the Commander in Chief has invoked since the Korean War to justify unilateral uses of force – upholding the integrity of the U.N. Charter – appears (as Wells argued) to be disserved rather than served by a military strike in Syria; and (3) a Syria strike would push the legal envelope further even than Kosovo, the outer bound to date of presidential unilateralism, which at least implicated our most important security treaty organization commitments (NATO). (Note that the USG was, as Wells pointed out, never able to publicly articulate a legal rationale for Kosovo. In our more legalistic age 14 years later, such silence likely won’t be possible, but it also won’t be possible to rely on Kosovo as a constitutional precedent without explaining why the invasion was lawful at the time.)
All of which raises the questions: Why is President Obama going to act unilaterally? Why doesn’t the man who pledged never to use force without congressional authorization except in self-defense call Congress into session to debate and authorize the use of force in Syria?