(Bloomberg View) -- Andrew Rudalevige at the Monkey Cage argued before the Syria strikes that they would be illegal. Fellow presidency scholar Matthew Dickinson emphasized that it's not so much about law as it is about politics, and the Constitution allows presidents to act right up until the point they are countered. Dickinson argues:
The reality, however, as the late, great presidential scholar Richard Neustadt reminded us in his classic study of the Presidency: “The probabilities of [presidential] power do not derive from a literary theory of the Constitution.” What Neustadt meant is that a close textual reading of the Constitution, and related statute cannot – by itself – determine the answer to this question, because these texts only provide formal vantage points from which the relevant actors – in this case, the President, Congress, and the Courts, will do battle. The relevant documents do not, by themselves, determine the victor.
In other words, the constitutional system as it has played out over the years sets up basic bargaining situations, rather than determining exactly who -- and which branch of government -- has authority to decide in each situation. As Neustadt says, the Constitution sets up a system of "separated institutions sharing powers." The House, the Senate, the presidency, the courts: Each of them legislates, executes the law and judges -- at least, each of them does things that look very much like those three things. We determine who gets to decide not by figuring out what the (congressional) power to declare war and the (presidential) power of commander in chief really mean, but by the actual decisions of the people in those positions and what they make of a situation.
That doesn't mean that a war can't be illegal. It's just that determinations of legality are only part of a necessarily political process of conflict and cooperation within the government. What I would add: Presidents who act with congressional support are in stronger positions than those who act without it (although in Vietnam and Iraq, that was undermined to a large extent by presidential dishonesty in making the case to Congress).
That's not the only reason presidents should seek authorization from Congress. They can also learn a lot from congressional pushback. The can get good clues about how politically viable a proposed action might be. Does it have broad bipartisan support? Are members of the president's party eager to support the action, or do they have to be pushed to stay on the team? Are partisan opponents pushing hard against it or are they hesitating? Of course presidents don't need formal action by Congress to learn some of this, but the need to vote forces more political information out into where the president can hear it.
The congressional process is also a good way for a president to learn more about the substantive case for action. Members of Congress may not care about anything beyond their political incentives, but they will express the case for and against by dragging out expert arguments. That's a good way for a president to double-check his or her own sources of information, and avoid the kinds of groupthink and yes-saying to which every administration is vulnerable. George W. Bush, for example, could have realized that his own Pentagon was woefully unprepared for the post-invasion occupation of Iraq, but he ignored the highly useful information generated by congressional consultation before that war.
The public process of consultation runs the risk of actual defeat in Congress, and it is almost certain to look messy. It's bad for short-term public opinion. Skilled presidents realize, however, that the benefits of having Congress on board will pay off in the long run, and that policy viability -- especially in military efforts -- is essential to long-term popularity.
1. Carrie Lee at the Monkey Cage before the strike on what President Donald Trump was doing by threatening Syria.
2. After the action, Susan Hannah Allen and Carla Martinez-Machain at the Monkey Cage on why airstrikes.
4. Perry Bacon Jr. and Dhrumil Mehta on the chances for a Democratic majority in the Senate. I still think it's unlikely, but we'll see.
5. I mostly agree with Matt Yglesias about Paul Ryan and Trump. Ryan did retreat on immigration over the last few years, but that happened before Trump's campaign began. Other than that, Ryan lost on many issues because the voters weren't there and because he wasn't very good at generating them, not because he abandoned his own agenda for Trump's.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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