Congress not passing the resolution doesn't change anything, legally [View all]

[cthulu2016]

Last edited Sat Sep 7, 2013, 10:56 PM - Edit history (2)

This is not about what Obama should or should not do if the Syria resolution fails. This is only about the legal import of such a failure. Please do not read this as a defense of Presidential unilateralism. It is assuredly not. It is talking about the legal effect of Congressional non-action, not about right and wrong.

Say that Congress fails to pass the Syria resolution. That would be a big de facto political statement, but as law it wouldn't mean a thing.

It would in no way limit Obama's authority to bomb Syria beyond whatever limitations did or did not exist before the vote. Congress would have done nothing. Not passing a bill is not an "act."

Failure to pass a bill does not even establish Congressional opposition to its contents. It implies it, but it does not state it and the will of a legislative body is expressed in what it states. (We routinely see the Senate fail to pass bills that have majority support, but less than 60 votes. That failure to pass is not an active statement of Senate opposition. Just that it did not pass.)

A "no" vote on saying X is a vote to say nothing. Saying "Not X" requires a resolution of its own. (This is different from a typical human relationship where, "can I borrow the car," is answered with either yes or no.)

So a subsequent bombing of Syria would be no less legal than it was before the vote. In fact, it would not even be defying Congress... certainly not on paper. Congress would, as a body, have stated no view on the matter to be defied.


Passing a law against striking Syria, on the other hand, would be an explicit Act of Congress. Very different from not passing a law in favor of striking Syria.

If, hypothetically, a Congress wanted to act to prevent a Syria strike in 2013 it would have to pass a law suspending the War Powers Act as pertaining to Syria in 2013, and stating that the President may not attack Syria. That second part would go to federal court, and would be interesting to watch.

Congress could also pass a law against spending federal funds on bombing Syria. That would be less controversial than trying to order the President to not bomb Syria. Congressional control of federal money is as Constitutionally profound as the President's autonomous status as Commander in Chief.


As for impeachment? Congress can impeach the President for spitting on the sidewalk or getting a bad haircut. The "high crimes and misdemeanors" language has no meaning beyond advice because Congress' interpretation of that part of the Constitution is not subject to review.

If Congress wanted to make extra sure by establishing in advance that bombing Syria without Congressional authorization is a "high crime" the Congress would be advised to pass a law saying that, because no law currently on the books prevents such strikes and failing to pass a resolution wouldn't change that.