Academic journal article Presidential Studies Quarterly

Libya, Syria, ISIS, and the Case against the Energetic Executive

Academic journal article Presidential Studies Quarterly

Libya, Syria, ISIS, and the Case against the Energetic Executive

Article excerpt

The Flawed Energetic Executive Model

In the late summer of 2013, President Barack Obama seemed poised to order U.S. military action against Syria without congressional authorization. Obama "apparently [felt] the need to follow through on his threat" to use military force against the Assad regime if it used chemical weapons in the Syrian civil war (Cole 2013). However, following criticism from more than 150 legislators who insisted that congressional authorization was constitutionally required, President Obama changed course and asked Congress to authorize military action in Syria. John Yoo argued that the president's decision to seek congressional authorization was a mistake (Yoo 2013). In Yoo's view, President Obama had constitutional authority to act without congressional approval. (1) Yoo claimed that "the Framers did not lodge the war power solely with Congress ... [because] [legislatures are slow--Congress will not vote on the [Syria] authorization until the second week of September ... They [members of Congress] do not act with unity, secrecy, and speed" (Yoo 2013). Yoo worried that, because Obama had chosen not to act promptly and unilaterally, "[i]t seems likely that [Bashar al-] Assad will learn everything he needs to know about our tactics, strategy, and political will from a lengthy legislative debate" (Yoo 2013).

As it turned out, however, Congress never voted on legislation to authorize the use of military force against Syria, and the United States did not take military action against the Assad regime. (2) After President Obama asked Congress for approval, the crisis was resolved through diplomacy when Russia brokered a deal that would eliminate Syria's chemical weapons arsenal (Walsh and Labott 2013).

Yoo's concern that Obama had made a mistake by asking Congress to weigh in on the question of using military force against the Assad regime was based on a misconceived and constitutionally illegitimate energetic executive model of presidential power. By the energetic executive model, we mean the claim that Alexander Hamilton believed it was necessary to vest war power in one person, the president, who could order the military to act quickly and decisively in the name of national security. Yoo and other proponents of this energetic executive model are misreading both Hamilton's writings and the Constitution itself. When Hamilton spoke of energy in the executive, he did not mean that the president had plenary power over the use of military force, and even if Hamilton had meant this, the Constitution clearly rejects concentration of war power in the hands of the president. The energetic executive model is similar to the baseless sole organ doctrine of exclusive presidential control over foreign affairs (Fisher 2007). Each creates an illusion of legitimacy that depends on taking remarks by prominent figures in the history of public law (Hamilton for the energetic executive, John Marshall for the sole organ doctrine) wholly out of context to support a vision of presidential power that neither man intended and the Constitution expressly rejects. Both the energetic executive and sole organ theories seek to claim legitimacy through seemingly authoritative sources--for the energetic executive, an Office of the Legal Counsel (OLC) memorandum, and for the sole organ, dicta in a Supreme Court opinion (United States v. Curtiss-Wright Export Corp. 1936; Yoo 2001). But, on closer examination, these seemingly authoritative precedents are based on misreadings of the primary sources. Like the sole organ doctrine, the energetic executive model needs to be debunked and exposed as a fallacy.

The energetic executive model associated with Yoo and other advocates of plenary executive power fails, both as a matter of law and of policy. It fails as a matter of law because, as Hamilton himself recognized, the Constitution squarely rejects unilateral presidential military action outside of the limited context of an emergency defensive response to a sudden attack (Adler 2010, 537; Fisher 2013, 8; Kassop 2015, 164). …

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