In President Obama’s September 10 speech about the possibility of a U.S. strike in Syria, he made it clear that, while he is seeking the approval of Congress, his position as commander in chief allows him to order a strike without Congressional approval.  To quote: “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.”

Legal systems around the world have, for centuries, operated on precedent in the sense that legal rules and decisions are always guided by what has come before.  So what is the precedent for President Obama’s statements about his authority to authorize a strike?  Certainly there have been situations that appear similar.  Military action in a foreign country was carried out without a prior joint resolution of Congress in a number of conflicts: Carter’s Iran hostage intervention, Operation Just Cause in Panama, Bill Clinton’s bombing campaign during the Kosovo War, and, most recently, President Obama’s actions in Libya.  But the situation in Syria is different from any of those military interventions in that Syria has made no direct threat to American security or citizens, the UN Security Council has not authorized military action, NATO has had no involvement, and the strike would be carried out to punish, not prevent, an alleged war crime.  Perhaps more problematically, the two treaties banning the use of chemical weapons contain no provisions defining the appropriate response to a violation, and Syria has signed only one of the two treaties.  In terms of international law, President Obama’s proposed strike is swimming in some murky legal waters.

However, the United States Constitution grants a president broad powers when it comes to taking a unilateral military action.  The power to “make war” was removed from both Article I and Article II during the Constitutional Convention of 1787, giving the president ultimate command over the armed forces.  Instead of the power to “make war,” the Constitution gives Congress the ability to “declare war” and power over the military purse strings.  Further, the United States has frequently engaged in military action without a declaration of war from Congress (not that President Obama is now seeking such a declaration) or without any express authorization from Congress at all.  The War Powers Resolution legislation enacted following the Vietnam War may place the most restrictions on a president’s power to take military actions, by requiring a president to make reports to Congress and limiting the length of time troops may be deployed without Congressional authorization.

It seems likely that President Obama’s decision to seek authorization from Congress is largely political.  After a decade of war, many Americans might balk at the prospect of committing to another military action.  Additionally, seeking Congressional authorization might help diffuse any potential backlash if the military action goes badly.  Given the unique situation in Syria, Congressional authorization could also set an interesting precedent.  The draft of the authorization submitted to Congress restricts the military action neither temporally nor geographically, does not rule out the use of ground troops, and requires that the president simply establish a plausible connection between any military action and the use of chemical weapons in Syria.  In a world built on precedents, that type of open-ended authorization may just solidify the president’s broad power to make war for future leaders of “the world’s oldest constitutional democracy.”