October 29, 2013

Those who are unwilling to obey laws they dislike — unwilling to accept majority rule — and who despise or fear government, are attempting in various ways to prevent the enforcement of such laws. The right wing of the Republican Party in Congress, not content with opposing any measures designed to improve the economy or diminish inequality, shut down the federal government in a tantrum over health care, and may well do so again. Five counties in Maryland, eleven in Colorado and two in California, unhappy that the country no longer is rural, want to secede from their states and form new ones they can control. (That is not likely to go anywhere, as it cannot be done "without the Consent of the Legislatures of the States concerned as well as of the Congress."[102]) Nullification, the theory that states can avoid federal laws, has become an even more fashionable notion although it is less logical, having no constitutional basis.  

Nullification is advocated on the web, notably by The Tenth Amendment Center,[103] and by "Nullification Now" meetings.[104]  It has found its way into bills introduced in a number of states. Like so many fringe ideas, its potential for mischief outruns its coherence, so it cannot be ignored. What follows is an update of my note of February 18 on the phenomenon, and a preface to a more extended comment. 

Alaska has enacted a statute which, in its preamble, bravely declared that

a statute, regulation, rule, or order that has the purpose, intent, or effect of confiscating any firearm, banning any firearm, limiting the size of a magazine for any firearm, imposing any limit on the ammunition that may be purchased for any firearm, or requiring the registration of any firearm or its ammunition . . . is not authorized by the Constitution of the United States, . . . and, consequently, is invalid in this state and shall be considered null and void and of no effect in this state . . . ."[105]

The operative section is at once bolder and more cautious than the preamble.

A federal statute, regulation, rule, or order . . . is unenforceable in this state by an official, agent, or employee of this state, a municipality, or the federal government if the federal statute, regulation, rule, or order violates the Second Amendment to the Constitution of the United States or art. I, sec. 19, Constitution of the State of Alaska, by (1) banning or restricting ownership of a semiautomatic firearm or a magazine of a firearm; or (2) requiring a firearm, magazine, or other firearm accessory to be registered. [106]

That in effect is a nullification, but without the preamble’s more provocative "null and void." It backs away from the recital in limiting the act’s effect to semiautomatic weapons, and the use of "if" introduces an ambiguity. However, it adds "restricting ownership," and the claim that a federal agent may not enforce a federal law which, unless it is mere rhetoric, sets up a confrontation. Perhaps as a means of avoiding that, the next section of the statute provides that

The attorney general shall, under the Second Amendment to the Constitution of the United States or art. I, sec. 19, Constitution of the State of Alaska, file legal action necessary to prevent the implementation of a federal statute, regulation, rule, or order that violates the rights of a resident of the state."[107]

Somewhat redundantly, but again ambiguously, the statute prohibits the use of state assets to implement "an order of the President of the United States, a federal regulation, or a law enacted by the United States Congress that is applied to . . . infringe on a person's right, under the Second Amendment to the Constitution of the United States, to keep and bear arms; . . ."[108]

The statute also declares that a

personal firearm, a firearm accessory, or ammunition that is possessed in this state or manufactured commercially or privately in this state and that remains in the state is not subject to federal law or federal regulation, including registration, under the authority of the United States Congress to regulate interstate commerce . . . .[109]

That language is taken from a model act known as the Firearms Freedom Act (FFA), which is based on a Montana law. It is making the rounds and has been enacted in several states.[110] In its model form [111] it does not purport to nullify federal laws, and in fact does nothing but express an opinion, although the Tenth Amendment Center treats it as a form of nullification.[112]  

In April, Kansas enacted a form of the Firearms Freedom Act which goes further. In its version, "It is unlawful for any official, agent or employee of the government of the United States . . . to enforce or attempt to enforce any act, law, treaty, order, rule or regulation of the government of the United States regarding a firearm, a firearm accessory, or ammunition that is manufactured commercially or privately and owned in the state of Kansas and that remains within the borders of Kansas."

Violation a felony. The threat to arrest a federal official risks a dramatic confrontation; it’s difficult to think that the Kansas legislature considered the implications of anything so irresponsible.

In addition, any federal law "which violates the second amendment to the constitution of the United States is null, void and unenforceable in the state of Kansas."[113] Like the corresponding Alaska statute, this is vague, but presumably Kansas will determine which laws fail the test.

Missouri passed a similar bill. Under it, any federal law in violation the Second Amendment "shall not be recognized by this state, shall be specifically rejected by this state, and shall be considered null and void and of no effect in this state."[114]  A federal agent who attempted to enforce such a law would be guilty of a misdemeanor. The bill was vetoed by the governor; an attempt to override failed by the narrowest of margins.

In August the Ninth Circuit rejected the premise of the Montana FFA and held that a firearm manufactured in Montana, intended to be sold only in Montana, and stamped "Made in Montana" is subject to federal licensing laws. The other attempts to nullify or avoid federal law should suffer the same fate, but one never knows.

In the next segment, I’ll address arguments in support of nullification.

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102. Constitution Article IV, Section 3
103. http://tenthamendmentcenter.com/
104. http://www.examiner.com/article/tom-woods-will-headline-nullify-now-nc-conference
105. http://www.legis.state.ak.us/basis/get_bill_text.asp?hsid=HB0069Z&session=28 106. Codified as AS 44.99.500(f)
107. AS 44.99.500(g)
108. AS 44.99.040. It also prohibits the use of state assets to implement the federal REAL ID Act of 2005, an odd addition to a gun-possession law.
109. AS 44.99.500(a)
110. See http://firearmsfreedomact.com/state-by-state/
111. http://firearmsfreedomact.com/model-version-of-ffa-legislation/
112.http://tenthamendmentcenter.com/2009/10/21/nullification-firearms-freedom-act-introduced-in-ohio/#.UkB4E4_n9T0   

October 11, 2013

Republicans have begun to realize that shutting down the government wasn’t a good idea politically and have discovered that there are parts of it that they like, or can pretend to. Hence the rush to exempt selected functions and the dishonest attempt to blame the Democrats for not restoring those functions, i.e., for rejecting the GOP’s demand to defund the Affordable Care Act, or parts of it, or delay it, or parts of it, or whatever the fallback demand du jour might be. As Froma Harrop put it in a recent column, "The more modest the Republican demands, the nuttier they sound. Pious posturing does not alter the fact that we’re viewing an extortion racket."

Attempts to explain or justify their tactics have tied Republicans in knots. Ted Cruz has managed to cancel his own arguments; his obsession with the Affordable Care Act has led to shutting down the government, but he said on Monday that the furlough of civilian intelligence workers — caused by the shutdown — "creates ‘a dream scenario for terrorists and enemies.’ " [98]  Here’s another example from Sam-I-Am, aptly described as cognitive dissonance:

Consider these two Ted Cruz statements, alongside one another:
1. "Will the U.S. default on its debt? . . . The answer is of course not."
2. "The debt ceiling historically has been among the best leverage that Congress has to rein in the executive."
. . . [O]ne might be given to wonder, what good is using the debt ceiling as a leverage point if the U.S. isn't going to default on its debt? The threat of default is the leverage.[99]

In addition to the contradiction, the second statement isn’t true.

Some Republicans simply are too ignorant to hold any public office. A state representative from Arizona referred to "National Park Service thugs" carrying out "the order of De Fuhrer." [100]  Okay, Arizona legislators aren’t required to know German definite articles, but her comment, comparing Obama to Hitler is absurd, foolish and vicious. Here’s Congressman Ted Yoho on not raising the debt ceiling, which will lead to default: "I think, personally, it would bring stability to the world markets."[101]

One of the problems with Republicans — the "base" and, to a considerable extent, elected officials — is that they have no national or party memory, apart from fuzzy and partly false impressions of the Reagan era. When they presented their demand that Obamacare be defunded as the price of keeping the government open, they seemed unaware that holding the government hostage is irresponsible, that it isn’t standard practice and that the shutdowns triggered by Gingrich hardly were a rousing success.

Some Republicans and some editorial writers have been bold enough to point out the fallacy and danger in the House tactic; even The Issaquah-Sammamish Reporter, not a leftist publication, joined in: "Blame some House Republicans for using the shutdown tactic in order to delay — or, what they really want, to kill — the Affordable Health Care Act. Their actions are a disservice to the American public." The principal, or original, blame does fall on the reactionary few, but it falls also on the abettors, including Speaker John Boehner.

Boehner, who certainly must know better, has gone along because he has no control over his caucus. Faced with the need to justify the shutdown, and desperate to blame the President, he claimed that Mr. Obama demands "unconditional surrender." That’s hardly the case but, if in the end Boehner folds, he’ll regret so labeling his retreat.

Of course, none of this may matter; the Republicans may escape without the political punishment they deserve. In addition to the fair and balanced treatment of the news on Fox, the MSM will do their part to spread them blame. On Tuesday, Andrea Mitchell presented a segment on the NBC Nightly News about the suspension of death benefits to service families due to the shutdown. It consisted entirely of references to affected families without political comment. Apparently someone noted the omission, so on Wednesday night she presented the same clips, prefaced by a comment, in which she could not contain her outrage, blaming it on the White House. Let’s see; the House Republicans, blatantly playing the hostage game, have refused to fund the government, leading to nonpayment of benefits, so it’s the administration’s fault.

Also, as Salon’s Alex Pareene said recently, "Never underestimate the ability of Democrats to lose a standoff with a bunch of deluded nuts. Democrats don’t have a Cruz, they have an Obama, who is always more than willing to attempt to give the deluded nuts at least some of what they claim to demand." Rumor has it that the concession may be a hit to Medicare and Social Security.

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98. http://www.huffingtonpost.com/2013/10/08/cruz-national-security_n_4064121.html >
99. Jason Linkins, http://www.huffingtonpost.com/2013/10/08/debt-ceiling-deniers _n_4065363. html?utm_hp_ref=politics
100. http://www.huffingtonpost.com/2013/10/07/brenda-barton-arizona-fuhrer_n_4059965.html
101 http://thinkprogress.org/economy/2013/10/07/2740271/yoho-debt-ceiling-markets  

October 3, 2013

The shutdown continues, and so does the media aid to the Republicans. Last night the ever-reliable Chuck Todd dramatically announced that Speaker Boehner emerged "frustrated" from a conference with the President. There followed a clip of Boehner complaining about the refusal of Democrats to "negotiate," i.e., to give in to the GOP demands to defund the health care act as the price of keeping the government open. After featuring that bit of propaganda, Todd said, "we also heard from Nancy Pelosi and Harry Ried," but we didn’t: a brief clip followed showing them at a microphone, but there was no sound. Instead, Todd, who had acknowledged that the only issue was health care, stated that Reid and Pelosi refused to negotiate "on any of those points." As if to confirm that Todd’s distortion is network policy, the caption of that report on the NBC Nightly News archives page is "Boehner frustrated Democrats won’t negotiate." And we wonder why people are confused.

The shutdown, absurd to begin with, has become so bizarre that even the Republicans don’t know what’s going on, but they need to press on, because backing down would be so humiliating: " ‘We're not going to be disrespected,’ Rep. Marlin Stutzman (R-Ind.) told The Washington Examiner. ‘We have to get something out of this. And I don't know what that even is.’ "[97]

Boehner is in the position of a nanny confronted with a bunch of brats. One can sympathize with his plight, but at some point, the adult has to take charge. He’s overdue.

____________________

97. http://www.huffingtonpost.com/2013/10/03/marlin-stutzman-government- shutdown_n_4034123.html?view       

September 30, 2013

Chuck Todd of NBC has taken a good deal of heat over a comment he made regarding responsibility for misinformation about Obamacare: "What I always love is people say, ‘Well, it's you folks' fault in the media.’ No, it's the President of the United States' fault for not selling it." Todd’s remark may have been taken out of context, but it’s difficult to defend him, or contemporary journalism. Todd’s little lectures on the NBC Nightly News are longer on ego than substance, and much of the reporting on politics or government falls into the no-comment, faux-objectivity category.

Reporting on the impending shutdown is a glaring example of the phenomenon. Republicans demanded, as the price for a resolution allowing the government to operate, delaying implementation of the health care law for a year and a repeal of a tax on medical devices that helps finance it. This is an undemocratic, irresponsible, scorched-earth tactic, but the issue is treated as if it were merely a partisan fight, with equal fault on each side.

An example of that reaction appeared in The Seattle Times on Saturday; an article about the shutdown was captioned "Dems, GOP refuse to compromise on health law; shutdown imminent." The Democrats have objected to a Republican attempt to hold funding the government hostage to their obsession with undermining the health care act; that’s a refusal to compromise. The article was from the McClatchy news service, so I looked at its web site, expecting to find a more sensible heading, but all I found was a variation on the theme: "Both sides threaten government shutdown Tuesday over Obamacare." Here’s another example, a lead on the Washington Post web page: "Parties agree: It’s the other side’s fault."

Journalists either playing stenographer or blaming both sides for every conflict are doing a great disservice, to the country and to their profession.

September 17, 2013

I criticized President Obama’s Syria speech for, among other factors, inconsistency and confusion. However, at least he had a specific and limited aim, neutralizing Syrian chemical weapons, had sense enough to consult Congress when it became apparent that there was little public support, and was receptive to a diplomatic solution. His claim of the right to wage war without a declaration by Congress should not be accepted or ignored, but at least for now, he’s on a more useful and defensible track.

My impulse to give him some credit is prompted by a number of opinion pieces which exceed his for confusion and inconsistency. Begin with Thomas Friedman. His comments on September 10 [88] were, like Mr. Obama’s, ambivalent about intervention, but he attributed his indecision to new conditions in the Middle East: "Until 2010, the Arab Middle East had been relatively stable for 35 years," but developments since then force us "to confront some new and very uncomfortable questions." Where does the first half of that formula come from? In 1991, Iraq invaded Kuwait; both are Arab nations. In 2003, Mr. Friedman enthusiastically supported our invasion of Iraq because "a terrorism bubble had built up over there. . . ." We needed to

partner with Iraqis, post-Saddam, to build a progressive Arab regime. Because the real weapons of mass destruction that threaten us were never Saddam's missiles. The real weapons that threaten us are the growing number of angry, humiliated young Arabs and Muslims, who are produced by failed or failing Arab states - young people who hate America more than they love life.

That’s an odd sort of stability. What are the "new and very uncomfortable questions?" Not the use of gas; Iraq used it against Iran and against Iraqi Kurds in the 1980s. He doesn’t want to send American troops to Syria, but that seems to be a new position on our role, not on intervention:

The only problem is that it is impossible to imagine a solution to the conflict in Syria without some outside force putting boots on the ground. Therefore you need either a midwife or a Mandela or a trusted military to referee the transition to a new order.

That is a truly strange comment. How, if someone needs to put boots on the ground, can a Mandela or a midwife "therefore" be needed?

David Ignatius thinks that "this new American caution is potentially dangerous." [89] As an antidote, he recommended that Mr. Obama read, as Ignatius has, a book about Machiavelli and learn its prescription for success, which is expressed in terms of foxes and lions.

Obama does the fox thing pretty well. He recognizes traps and generally avoids them. But he needs more lion. This means bold policy — diplomacy backed by the threat of military force. To succeed in reframing U.S. power, Obama will need to frighten the wolves on Capitol Hill and in the Kremlin . . . .

This sounds less like "reframing" American power than business as usual.

Ignatius worried that, if the President didn’t follow his advice, those wolves "will devour what’s left of his presidency." That’s exactly what one of the heavy thinkers on Townhall.com wants: "It has been a long five years, our Obama nightmare. . . . Along with the tragic economic consequences of Obama’s policies, Americans are now witnessing the dangerous effects of a left wing, inexperienced community organizer serving as Commander in Chief."[90] Mr. Obama has been wrong, our pundit declared, in Egypt, in Libya and now in Syria. "The President’s policy is a total disaster." What is the alternative? Don’t ask.

A similar appraisal of Mr. Obama’s presidency, also including domestic as well as foreign policy, came from Norman Podhoretz. "So far as domestic affairs were concerned, it soon became clear . . . that the fundamental transformation he had in mind was to turn this country into as close a replica of the social-democratic countries of Europe as the constraints of our political system allowed."[91] Horrors! The man must be a communist. That was bad enough, but foreign policy was even worse. "As a left-wing radical, Mr. Obama believed that the United States had almost always been a retrograde and destructive force in world affairs. Accordingly, the fundamental transformation he wished to achieve here was to reduce the country's power and influence." You see, his fumbling and changes of mind were merely cover for his real plan: "The president may look incompetent on Syria. But his behavior fits his strategy to weaken America abroad."

Marc Thiessen, complaining about "Obama’s unbelievably small presidency," took the opposite tack: "We’re conducting foreign policy by faux pas. This entire episode has been driven not by deliberate strategy but by slips of the tongue." In his speech, the President should have given Assad orders and threatened, in the event of non-compliance, "a devastating military response." [92]

Jennifer Rubin dismissed the "phony scheme" concocted by Obama and Putin. To replace it, she set out a model resolution for Congress, but at that point seemed to lose track of the issue. The first clause proposed using "all necessary force against Iran" if it didn’t stop enriching uranium, and the second pledged support for efforts to overthrow the Iranian government. Clause three advocated "aid and assist Syrians, including the Syrian Free Army, seeking to live in peace with their neighbors. . . ." The fourth clause denounced Russia. Finally, in the fifth clause, she addressed the issue, more or less, and opted in tangled syntax for the military solution:

The president shall be authorized to use all means necessary to achieve the president’s stated purposes, to wit, enforcing sufficient consequences for use of WMDs, preventing the risk of future use by the Assad regime or Hezbollah and degrading the Assad regime’s ability to use, deliver and command the use of WMDs.[93]

Jackson Diehl, ever ready to set the world right, declared: "A failure to respond by the only outside power capable of making a difference only invites greater crimes and worse threats to vital U.S. interests."[94] Here we have the world policeman, or hegemon, argument. "At the root of Obama’s foreign policy dysfunction is a refusal to accept that an American president must take on the history that erupts on his watch . . ., and use his unique power to shape it." The greater crimes and worse threats were not specified. The outline of a new policy apparently must await a future column.

Those are the honorable mentions. Second prize in the competition goes to Glenn Beck, who now is against intervention. "The cost of getting involved is far too high and it’s the people of Syria are the ones [sic] who will pay the price. It will eventually cost all citizens of the globe as it will put us another step closer to World War III." Wasn’t he in favor of adventures abroad? Yes, but that was then: it "all changed for me several years ago when I began to realize this democracy building mentality was a progressive mentality."[95] As he’s made clear, progressive means evil.

First prize, although he really belongs in a class by himself, has to be awarded to Alex Jones, who offered this [96] in one of his radio rants: Weapons inspections are a globalist, collectivist plot. "[W]hat the United Nations really wants to do here, is set the precedent that they can come into any country they want, that has any type of weapons systems — and call them WMDs, and then dismantle that country's infrastructure." That’s only the beginning: "Everyone is going to be deindustrialized. Everyone is going to be put back in the stone age to be controlled, and then Obama, and the globalists, and the robber barons, they're gonna fly around in their jetcopters, and their Air Force Ones, and their red carpets like gods above us, and they're gonna get the life extension technologies." Life extension? Well, yes, and more: most of us will be eliminated, and replaced by "a new species ... of humans merged with machines." Mr. Obama’s remarks and actions begin to look cogent.

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88. http://www.nytimes.com/2013/09/11/opinion/friedman-threaten-to-threaten.html?_r=0  
89. http://articles.washingtonpost.com/2013-09-13/opinions/42033699_1_president-obama- chemical-weapons-syrian-war  
90. http://townhall.com/columnists/jeffcrouere/2013/09/14/our-never-ending-obama-nightmare-n1700035
91. http://online.wsj.com/article/SB10001424127887323595004579062811443943666.html  
92. http://www.washingtonpost.com/opinions/marc-thiessen-obamas-unbelievably-small-presidency/2013/09/16/e01838ca-1ed3-11e3-94a2-6c66b668ea55_story.html  
93. http://www.washingtonpost.com/blogs/right-turn/wp/2013/09/11/heres-a-resolution-for-you/
94. http://www.washingtonpost.com/opinions/jackson-diehl-try-as-he-might-obama-cant-dodge-the-mideast/2013/09/15/47dda75a-1bc4-11e3-82ef-a059e54c49d0_story.html
95. http://www.glennbeck.com/2013/09/09/the-anti-war-glenn-beck/
96. Textual excerpts and a link to the broadcast are at http://mediamatters.org/blog/2013/09/11/alex-jones-links-syrian-weapons-proposal-to-hum/195829  

September 11, 2013

President Obama delivered his speech on Syria [87] last night, as scheduled, but probably it was not the speech originally planned. Recent events, including resistance in Congress and among the public, and the possibility of a diplomatic solution, left him in an awkward position. He couldn’t simply demand support for an attack on Syria, but he couldn’t back down either. The result was a speech long on moral principal, laced with dubious claims about national security, leading nowhere.

"I have resisted calls for military action because we cannot resolve someone else's civil war through force, particularly after a decade of war in Iraq and Afghanistan." Apparently he means that, at some point in the past, he resisted; Assad’s alleged use of chemical weapons crossed a line he had set, and he came to think that someone else’s civil war is our affair: "The question now is what the United States of America and the international community is [sic] prepared to do about it, because what happened to those people, to those children, is not only a violation of international law, it's also a danger to our security." As to atrocities, some skepticism or at least caution is in order; (alleged) atrocities are too commonly an excuse for military action.

In what way is the situation in Syria "a danger to our security?" This appears to be the answer: "As the ban against these weapons erodes" — apparently due to our failure to attack Syria — "other tyrants will have no reason to think twice about acquiring poison gas and using them. Over time our troops would again face the prospect of chemical warfare on the battlefield, and it could be easier for terrorist organizations to obtain these weapons and to use them to attack civilians." I have some difficulty in connecting the situation in Syria to the use of chemical weapons in some future war or terrorist event. Even if such a connection exists, would that not mean that our use of drones against civilians has invited others to us drones against us?

Of course there was a reference to our permanent enemy: "al-Qaida will only draw strength in a more chaotic Syria if people there see the world doing nothing to prevent innocent civilians from being gassed to death." The theory, I suppose, is that Syrians will become desperate for an ally against Assad, and will be so cynical about American resolve that, even though they would have had nothing to do with al Qaeda before, now they will rush into its arms. Again, the logic seems strained.

"If fighting spills beyond Syria's borders, these weapons could threaten allies like Turkey, Jordan and Israel." Iran might be emboldened and so on; the domino theory lives.

Here’s the truly remarkable statement:

I'm . . . the president of the world's oldest constitutional democracy. So even though I possessed the authority to order military strikes, I believed it was right, in the absence of a direct or imminent threat to our security, to take this debate to Congress. I believe our democracy is stronger when the president acts with the support of Congress, and I believe that America acts more effectively abroad when we stand together.

We have a constitutional system but, although the Constitution provides otherwise, he can declare war. However, because he thought it would strengthen his position, he asked Congress to approve the plan of attack. There is no "direct or imminent threat to our security," so a delay is not a risk but, as he stated earlier, there is "a danger to our security," so eventually we must intervene.

People have asked "Won't this put us on a slippery slope to another war? No, this would be a limited action, so small no one would notice it, a mere pinprick — oops, no, the "United States military doesn't do pinpricks." It will be something larger than a pinprick, but smaller than "a prolonged air campaign like Libya or Kosovo." Maybe, if it works, if nothing goes wrong.

Mr. Obama agreed with critics that "we should not be the world's policeman." Does he mean that? "Over the last two years my administration has tried diplomacy and sanctions, warnings and negotiations. But chemical weapons were still used by the Assad regime." Therefore we must act; how does that differ from being the world’s policeman?

At that point, the speech caught up with recent events. We’ll wait to see what comes of the Russian proposal. We’ll rally support. Oh, and here’s a thought: "We'll also give U.N. inspectors the opportunity to report their findings about what happened on Aug. 21^st." As we’re going to have a delay, we may as well have the facts.

The President is on record that we have an obligation to do something, the something to be designated later. Those of us who think that, however awful the situation in Syria is, we should stay out, have been put in our place.

Am I too cynical, too sarcastic? Probably, but Mr. Obama has done everything possible to invite such a reaction. It’s really discouraging to be writing in 2013 something that sounds more like 2002 or 2003.

_____________________


87. http://www.huffingtonpost.com/2013/09/10/obama-syria-speech-full-text_n_3903500.html  

September 10, 2013

The President wanted to attack Syria. He may still want to, or may have changed his mind, or may be dissuaded, or a diplomatic solution may be found, but the prospect of military action has raised an issue, hardly for the first time, about presidential war powers. No one doubts that Mr. Obama could have launched an attack on Syria without consulting Congress. He’s even been criticized for not doing so. However, perhaps motivated less by fidelity to the Constitution than by political calculation, he belatedly asked Congress to concur in his plan.

Merely asking Congress for support (and cover), and doing so only when it suits, isn’t exactly what the Constitution contemplates: "The Congress shall have Power . . . To declare War . . . ."[78]  There is no suggestion that this is a divided or qualified power. "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . . ."[79]  However, that says nothing about commencing hostilities.

One argument for bypassing Congress is that a military operation against Syria would not be a "war." That doesn’t pass the laugh test: firing missiles is an act of war, Secretary Kerry’s claim to the contrary notwithstanding. Indeed, when convenient, we are told that we are at war, permanently, though Congress hasn’t declared one since 1942.

There is the humanitarian theory: we cannot stand by while people are gassed. That justification (which assumes that the stories we have been told are accurate) simply overrides any constitutional quibbles: the President must act, so he has the right to act. However, even ignoring the constitutional issue, there is the problem that outrages occur all the time; what is our standard for intervention? This is an area where decisions should be taken internationally, but paralysis is built into the UN structure, and humanitarian warfare in the Middle East doesn’t quite fit the NATO model. If the UN were to act, American participation in any military operation would, in theory, be subject to congressional approval under the United Nations Participation Act of 1945.[80]

   However, that apparently is a nullity because the US never has entered into the agreement with the UN which is required to trigger the Act. Even if it had come into play, it might have been ignored; we entered the Korean War under the "aegis" of the UN, but without any action by Congress.

Another argument is that there may be situations in which an immediate response is required, and there is no time for consultation with Congress. A variation cites the remark made during the Constitutional Convention that assigning to Congress the power to "declare" war rather than to "make" war would leave the president with "the power to repel sudden attacks."[81]  The immediate-response argument has merit, and perhaps the "sudden attacks" discussion supports finding an implied power, but how often do such emergencies arise? None of our recent military adventures, with the possible exception of the early stages of the operation in Afghanistan, have fallen within this exception, and Syria does not. 

It can be argued that, in effect, war has been declared many times, through congressional resolutions. However, resolutions can be mere exercises in face-saving, taken with the knowledge that the president would proceed anyway; the 1991 Gulf War provides an example. In addition, resolutions can be vague and open-ended; how many times have courts been required to decide what the Authorization for Use of Military Force against Iraq means?

The resolutions in this case demonstrate the tendency to say too much. The resolution proposed by the President asks for authority

to use the Armed Forces of the United States as he determines to be necessary and appropriate in connection with the use of chemical weapons or other weapons of mass destruction in the conflict in Syria in order to --

(1) prevent or deter the use or proliferation (including the transfer to terrorist groups or other state or non-state actors), within, to or from Syria, of any weapons of mass destruction, including chemical or biological weapons or components of or materials used in such weapons; . . .[82]

He could use force "in connection with" the use of WMD in Syria, to prevent or deter their use or proliferation "within, to or from Syria;" that goes far beyond protecting innocent civilians from attacks by Assad and potentially extends to other countries. A declaration of war on Syria would be restricted by comparison.

The President’s draft resolution recites that

in the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003, Congress found that Syria's acquisition of weapons of mass destruction threatens the security of the Middle East and the national security interests of the United States.

So it did; it declared that WMD in Syria threaten our national security "interests," which seem to be something broader than mere security. Whatever the meaning, Congress in effect invited any president to propose an attack.

The Senate Foreign Relations Committee has taken a step further down the path of handing over power to the president. The recitals in its draft resolution on Syria include the reference to the 2003 Act, and add this:

"Whereas the President has authority under the Constitution to use force in order to defend the national security interests of the United States . . . ."[83]

Considering that a national security interest can be whatever a president says it is, that recital, if adopted by the full Congress, would be an official and complete surrender of the war power.

Although given that recital, any limitations on the President’s power under the proposed resolution would be a contradiction and an exercise in futility, the committee draft pretends to impose some: force is to be used "in a limited and　tailored manner against legitimate military targets in Syria." Before resorting to force the President must certify that "the United States has used all appropriate diplomatic and other peaceful means to　prevent the deployment and use of weapons of mass destruction by Syria," and there must be "a military plan to achieve the specific goals. . . ." We might be excused for thinking that the committee members who voted for the resolution are not up to the task.

The reason that presidents no longer follow the Constitution is that Congress already has abandoned its right to demand that they do so. In effect, it has conspired in a silent Amendment. The War Powers Resolution of 1973 [84] was a recognition of that, but it also was an attempt to set some limits on presidential action. Presidents have ignored the limits. Congress also has allowed the executive to be the repository of secrets, and the sole judge of who may share them, so even when Congress is consulted, it may not be able to make an intelligent decision.

We have developed a national attitude which tolerates, and often encourages, military solutions to any perceived, or manufactured, crisis abroad, and which assumes for us a world-policeman stance. National Security Advisor Susan Rice set forth that position: if we do not "punish" Assad, it "could indicate the United States is not prepared to use the full range of tools necessary to keep our country safe." Safe from Syria? No, from others who will think we aren’t much of a policeman: "Rejecting limited military action that President Obama strongly supports would raise questions around the world about whether the United States is truly prepared to use the full range of its power." We mustn’t encourage bad guys: "Leaders in Tehran must know the United States means what we say. . . . If we do not respond when Iran’s close ally, Syria, uses weapons of mass destruction, what message does that send to Iran?"[85]

Some of Rice’s hyperbole was prompted by Obama’s threat to use force, followed by his decision to ask for congressional approval. In other words, he’s gone out on a limb, from which Congress must rescue him by authorizing an attack. However, the insistence that we use "the full range of our power" also is part of a pattern; we have adopted what Andrew Bacevich terms the new American militarism, which "manifests itself through an increased propensity to use force, leading, in effect, to the normalization of war. . . . The American public's ready acceptance of the prospect of war without foreseeable end and of a policy that abandons even the pretense of the United States fighting defensively or viewing war as a last resort shows clearly how far the process of militarization has advanced."[86]

The nation has pressing domestic problems, such as unemployment, poverty, the weakness of the economy, the capture of the polity by the wealthy, and the breakdown of responsive and responsible government. When we can govern ourselves effectively and justly, then perhaps we legitimately can consider whether and how to manage other countries.

Syria and humanitarian intervention are not the only situations which pose war-power issues; drone assassinations, indefinite detention, and domestic surveillance also require an inquiry into the extent of and justification for presidential authority. At some point, Congress needs to step back, look at the whole picture, reassert its constitutional rights, limit the situations in which the president can act on his sole initiative, and set out rules for those cases.

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78. Article I, Section 8.
79. Article II, Section 2
80. 22 U.S.C. § 287d
81. See Records of the Federal Convention:
http://press-pubs.uchicago.edu/founders/documents/a1_8_11s4.html
82. https://s3.amazonaws.com/s3.documentcloud.org/documents/782228/aumfresolutiontext.pdf  83. http://www.foreign.senate.gov/imo/media/doc/DAV13973.pdf
84. 5 U.S.C. § § 1541-48
85. http://www.washingtonpost.com/politics/obama-adviser-susan-rice-pushes-presidents-case-for-strike-against-syria/2013/09/09/92edd2e4-196f-11e3-a628-7e6dde8f889d_story.html?hpid=z9
86. Bacevich, The New American Militarism: How Americans Are Seduced by War, pp. 18-19