United States President Barak Obama seems to be confused with respect to the doctrine of separation of powers and it is showing in his Middle-Eastern policies. While the term “separation of powers” is nowhere mentioned in the U.S. Constitution, it is the document’s underlying theme. This theme is apparent when you look at the manner in which the Constitution is organized into articles; the first three each addressing separate branches of government. The first article lists the powers of the American Congress, i.e., the legislative branch; the second lists the powers that are vested in the President, i.e., the executive branch; and the third lists the powers vested in the courts, i.e., the judicial branch. The different articles and how they allocate special powers to the different branches of the federal government are the main way that the drafters of the Constitution sought to divide the nation’s sovereign powers among the government’s different departments, or branches.
The President of the U.S is given the duty and obligation to defend the laws of the country. Article II of the Constitution provides that the President “shall take care that the laws be faithfully executed.” This principle is based on the fact that when the Executive branch fails to defend the application of a rule of law passed by both Houses of Congress and signed into law by the President, both Congress’ legislative function and the judiciary’s role as final judge of a law’s constitutionality are undermined. Recently, the issue of the Defense of Marriage Act’s constitutionality made its way through the U.S. court system. While the law was eventually determined not to meet constitutional requirements of equal protection, President Obama took the unprecedented step to affirmatively attack the Act’s constitutionality. By doing so, President Obama disregarded Congress’ legislative role and also undermined the judiciary’s position as the sole arbiter of the constitutionality of duly enacted pieces of legislation and directly challenged the longstanding doctrine regarding the separation of powers.
Based on this example (and Obama’s pronouncement with regards to Libya in 2011, which is discussed below) one would guess that the President has a broad view of executive powers. This makes the President’s decision to request Congressional approval for a limited Syrian intervention in light of clear human rights abuses all the more baffling, especially since in this case both the letter of the law and past practices make it clear such Congressional approval is not necessary.
The Constitution provides that the President is the commander in chief of the armed forces. Nonetheless, the power to declare war is vested in Congress. While the power to declare war is indeed vested in the American legislature, Congress has not formally made such a declaration since June 5th, 1942, and in the history of the United States, war has been formally declared only five times. All other instances of war have either been done by the then acting President without any Congressional input whatsoever or only went through Congressional authorization; but stopping short of a formal declaration of war. Further, on over 120 occasions, American Presidents have acted without express military authorization from Congress. By engaging in votes to authorize military action without making formal declarations of war, Congress has implicitly set numerous precedents that declarations of war are not needed for military hostilities. Votes regarding military intervention but which stopped short of a declaration of war are likely irrelevant to a President’s actual military powers as the U.S. Constitution discusses only declarations of war and not mere authorizations of military interventions. Finally, if non-Congressionally-sanctioned military expeditions by American Presidents are in fact unconstitutional, why has no previous American commander in chief faced impeachment charges for such allegedly military operations?
This brings us to our next question: why is President Obama turning to Congress for authorization to engage in the military operations in Syria he himself deemed were necessary and justified (query whether President Obama has an answer)? As a presidential candidate in 2007, the then Illinois Senator agreed that “[t]he President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” While that seemed like a pretty clear statement regarding Mr. Obama’s interpretation of executive war powers, a mere four years later with regards to the situation in Libya he stated he was acting “pursuant to [his] constitutional authority to conduct U.S. foreign relations and as commander in chief and as chief executive.” While President Obama would have been best off agreeing his interpretation of the law had either changed or developed, to my recollection, he made no such statement. Instead, his position has been and continues to be instable and unpredictable.
What is most interesting is that with regards to Syria, President Obama has himself stated that he does not need Congressional approval to attack the war-torn nation. While no one knows President Obama’s reason for seeking Congressional approval for a military campaign in Syria when legal authorities, past practices, and he himself say that no Congressional approval is needed, one thing is sure. The President’s disregard for the separation of powers doctrine with regards to the Defense of Marriage Act and his prior flip-flopping on issues of military intervention lead to only one conclusion: the leader of the free world is not guided by principles of law, instead, he is guided merely by his desired course of action and seeks legal support only after the fact. While this is dangerous on its own, it gets worse. President Obama’s foreign policy agenda is put together about as well as the traffic route of a typical teenage pizza delivery boy. While President Obama started off with his famous strong rhetoric and lofty ideals, once he realized actions would be needed he whimpered into a corner and decided to push the ball to Congress – in doing so he damaged the U.S.’s credibility and is placing Israel in an increasingly difficult situation.
President Obama’s actions have directly impacted Israel’s strategic position in the region in a negative way, especially as it relates to the Iranian nuclear threat. When the President of Israel’s closest ally creates a whirlwind of bold threats to Israeli enemies regarding serious and grave human rights abuses only to crawl behind his own Congress our enemies will no longer take our allies seriously. This truth is magnified when one realizes that American Congressman face elections every two years and the American populace is wary of additional military campaigns. It is sad and I hope I am wrong, but it would appear that President Obama has signed his own military intervention’s death certificate and has simultaneously emboldened the Iranian extremists and their proxies in Syria and Lebanon by showing them that he is all talk and no walk. As evidence of this, Israeli newspapers recently reported that Syrian daily newspaper, Al-Thawra, called Obama’s cowardly move “the start of the historic American retreat” – let’s hope that the Syrian run newspaper is wrong too.