Is Obama's Iran Resolution the Antidote to Kyl-Lieberman? Posted by Ari Melber

Everyone's talking about how Barack Obama escalated his criticism of Hillary Clinton's foreign policy this weekend, blasting Democrats who try to "look tough" by "talking and acting and voting like George Bush Republicans." Asked about that line on Sunday's Meet the Press, Obama seized on Clinton's vote for the Kyle-Lieberman amendment, a hawkish, non-binding Senate statement on Iran policy, saying it sent the "wrong message" on the region.Instead, Obama is advocating legislation stating that Congress did not grant President Bush the authority to attack Iran, either through the Kyl-Lieberman amendment or "any resolution previously adopted." Putting the brakes on Bush would be good for foreign policy, of course, but this is a dicey legislative strategy.

Obama's Iran resolution aims to check the executive branch in two strokes. First, it purports to define the boundaries of past congressional action. Second, it reiterates the constitutional fact that the president cannot start a war without congressional approval. The first goal is likely to backfire and the second is irrelevant.

In this political climate, Obama's resolution is unlikely to garner support from the majority of Congress. (It currently has no cosponsors.) Earlier this month, Jim Webb wrote a similarly well-intentioned letter telling Bush that he did not have authority to attack Iran. It only drew 29 other senators. Summoning a minority of the Senate to say what the majority thinks is not very effective. Such a letter is not binding, of course, and even some senators who agreed with its position declined to sign it. Yet antiwar legislators, activists and liberal donors are still pushing ahead for a legislative showdown on Iran.

Activists should be careful what they wish for. A failed floor vote on Obama's resolution would not help avert a war. It might even give hawks more ammunition. Some would surely argue that a failure to pass the resolution reveals that a majority of Congress believes the president already has the power to attack Iran.

Democrats regularly criticize the administration's distortions of congressional action to expand the president's power. Unfortunately, that dynamic cuts both ways. The administration stretches legislative language in defense of outrageous practices -- and then presents Congress' failure to override the conduct as evidence of tacit approval. It is a maddening strategy. But pushing doomed legislation on war powers won't help.

Obama's resolution also states that any attack on Iran "must be explicitly authorized by Congress." This is irrelevant because Article I of the Constitution already gives Congress the exclusive power to declare war. The Constitution trumps laws passed by Congress. Constitutional rules are not strengthened if Congress reiterates them, just as they are not canceled if Congress opposes them.

Yet like many concerned citizens, Obama says that the Kyl-Lieberman amendment may have "opened the door to an attack on Iran." This analysis has become something of conventional wisdom among Democratic activists and liberal bloggers. (DA's Michael Cohen has rebutted this view.) But based on recent history, the administration is actually unlikely to cite a nonbinding statement on Iran policy as the legal basis for a new war. Instead, the administration could repeat its tactic of citing the congressional authorization of force after 9-11.

Prior to the Iraq War vote, for example, White House attorneys said Bush could invade Iraq without congressional approval, based on the 2001 authorization. In 2005, Condoleezza Rice de the same legal claim for attacking Syria. That may be why she was so dismissive of the Kyl-Lieberman amendment this weekend, telling ABC News that it had "nothing to do with" any potential attack on Iran. After all, Rice added, the president already has the "authority to use whatever means he needs to use in order to secure the country."

So what should antiwar legislators and candidates do?

I explore that question in the rest of this American Prospect column, (which this post is drawn from).  And maybe readers and other bloggers can offer more ideas...

Comments

[Dan Kervick]

This is a most unpersuasive argument, Ari. You say:

Activists should be careful what they wish for. A failed floor vote on Obama's resolution would not help avert a war. It might even give hawks more ammunition. Some would surely argue that a failure to pass the resolution reveals that a majority of Congress believes the president already has the power to attack Iran.

It's hard to believe that a failed effort to pass the resolution will make a substantive difference in administration policy or public perception of that policy. If Bush is determined to attack Iran, he's going to attack Iran. I doubt he feels he needs more ammunition in the form of a Congressional non-action rhetorically interpreted as support.

You add:

Obama's resolution also states that any attack on Iran "must be explicitly authorized by Congress." This is irrelevant because Article I of the Constitution already gives Congress the exclusive power to declare war. The Constitution trumps laws passed by Congress. Constitutional rules are not strengthened if Congress reiterates them, just as they are not canceled if Congress opposes them.

Yes, but as we know the constitution's war powers provisions have been degraded into just so much ink by many, many decades of executive encroachment. Presidents have claimed all sorts of executive authorities to use military force in ways purportedly not requiring a declaration of war, and Congress has allowed them to get away with it so often that the old "declaration of war" is now seen by many as a quaint ancient ritual having no relevance to the modern world. If Bush has no declaration of war on Iran, he will simply say that his use of military force against Iran falls under one of those magnificent prerogatives of executive power requiring no declaration of war.

Unless Congress is willing to go on record as stating that military action against Iran is one of those things that does require direct congressional authorization, there is no effective constitutional conflict. If the resolution has a chance of passage - great. But if not, we want to get as many Democrats as possible on the legislative record with a non-waffling statement on the President's authorities regarding Iran. If they are unwilling to make such a statement, then the contention of Obama and others that Washington business-as-usual is the problem will be born out.

Given that you are a professed opponent of the Democratic Party's dovish tendencies, it's nice of you to give free advice advice to opponents of war with Iran. But we have learned to keep our own counsel.

Now Ari, this plea couldn't have something to do with the fact that certain other Democratic candidates have an interest in opposing this move - Clinton because there is no way she can vote for the measure without making herself look like a confused or dishonest waffler; and Edwards because he is not in government, and has no ability to propose, sponsor and publicly fight for legislation - could it?

[Don Bacon]

"the president cannot start a war without congressional approval"

Wrong! The constitution's war powers provisions have been degraded not only by executive encroachment but also by the Congress, while the Supreme Court is useless in defending the Constitution.

War Powers Resolution--Public Law 93-148, 93rd Congress, H. J. Res. 542
Joint Resolution, November 7, 1973

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities . . .and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities . . .

Hostilities against Iran will probably not qualify as a "possible instance", but if they do then the rubber-stamp Congress will stand tall for war as it has before. The Congress is nothing if not a dependable adjunct to the imperial presidency.

Obama's effort will probably fail because too many people want more war. They never learn.

Incidentally, the 2001 AUMF doesn't cover Iraq or Syria. It did cover Afghanistan (and Saudi Arabia, but we won't go there).

Sep 18, 2001-- Authorization for Use of Military Force, Public Law 107-40 [S. J. RES. 23], 107th CONGRESS -- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html

Note that the Congress made the President the determiner--but there are limits. Brings up the question: Why do we need a Congress? Is it just a glorious jobs program? They have ceded their constitutional power of providing for the national defense to the president, de facto and de jure. What a pitiful collection of miscreants they are.