Fischer, Johanns statements on Syria reflect historic constitutional tension

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September 13, 2013 - 3:13pm

Nebraska’s two U.S. Senators both said last week they oppose U.S. military action in Syria at this point. But they differed in their comments over President Barack Obama’s approach in seeking congressional approval – a difference one expert said reflects a longstanding tension in American history.

Last week, as the nation paused on the brink of attacking Syria, Sen. Deb Fischer, a Republican, was asked if this process was the way the United States should enter into a war. Fischer began her response this way: “Congress has the authority to declare war. Not the president.”

The same day, Nebraska U.S. Sen. Mike Johanns was asked whether he thinks the president should have to ask to Congress before acting. Johanns said he worries about weakening this or future presidents.

“Whether it’s a Democrat or a Republican in the White House, I know we have one Commander in Chief. Just one. Not 535 plus one,” Johanns said. “And I want to make sure that Commander in Chief can do what is necessary to protect the security of our nation, within the terms of the War Powers Act.

The two senators disagree more over emphasis than substance. Fischer acknowledged the War Powers Resolution passed by Congress in 1973 lets presidents use force for up to sixty days without congressional permission in emergencies. But she said Obama has not made that case with respect to Syria. Johanns said as a senator, he likes being consulted and told what the White House is thinking about doing. But he wants presidents to be free to act.

Those tensions go way back, said Lloyd Ambrosius, a history professor at the University of Nebraska-Lincoln. The line between executive and congressional authority is really a very difficult line to discern in practice. And that has been the case historically, throughout American history,” he said.

Ambrosius said in some cases, presidents have gone ahead on their own since the early days of American history. “There’s been a very long tradition, actually from the early 19th Century, beginning with Thomas Jefferson, that the American government has intervened in small skirmishes without declarations of war,” he said. “President Jefferson sent the navy over to the Mediterranean to deal with the Barbary pirates without requesting any kind of authorization. That pattern has continued throughout the 19th and even more in the 20th century.”

Even when it comes to larger conflicts, Ambrosius said, the constitutional procedure for Congress to declare war has not technically been followed since World War II. He cited the examples of the wars in Vietnam and Korea. “Lyndon Johnson, for example, called for the Gulf of Tonkin Resolution, which is not exactly a declaration of war. He argued that that was not necessary, constitutionally, but he wanted it politically because of the problems Harry Truman experienced not going to Congress during the Korean War,” Ambrosius said.

The Gulf of Tonkin resolution allowed Johnson to take “all necessary measures” to respond to alleged North Vietnamese attacks. A study for the National Security Agency later concluded evidence was “deliberately skewed to support the notion that there

had been an attack.”When Truman ordered U.S. forces into Korea in 1950, he called it a “police action” in response to a United Nations resolution.

On other occasions since World War II, presidents have sought congressional authorization, without calling for a declaration of war. George H.W. Bush got congressional approval to use force prior to the first Gulf War; George W. Bush got authorizations for both Afghanistan and Iraq, although Ambrosius said action against Iraq was approved with a promise to  then get approval from the UN, which didn’t happen.

Even while Fischer emphasized Congress’s role in declaring war, she said it is now up to the president to try and deal with Syria, diplomatically. “I’m supportive of the president’s actions and I just hope he continues to put pressure on and reach a resolution, or I’ll be one of his loudest detractors out there,” Fischer said. “This one needs to be settled. And he’s the one who needs to settle it.”

Johanns, too, said he hopes diplomacy succeeds. And while he continues to think the president has legal authority to act, Johanns said he worries Obama may have set a precedent that prevents him from taking even limited action.

“Let’s fast forward a few months and let’s say that we haven’t been able to bring this to a resolution and chemical weapons are used again in Syria.  Would the president have to come back to Congress?” Johanns asked. “I don’t believe so, but now that he’s made the precedent, he may feel like he’s forced to.”

For his part, Ambrosius said he’s not worried Obama has weakened future presidents by going to Congress over Syria. “I think it’s probably a good thing that the country and the Congress are wrestling with the same issues that the Obama administration also is trying to deal with, either through military force or through diplomacy. If diplomacy succeeds, that’ll be the best way out for the administration, for Congress, and for the American people as a whole,” he said.

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