Does the President Have the Power to Protect US Allies?

Obama going to Congress on Syria raises questions about America’s commitments to allies in Asia.

President Obama’s decision to seek Congressional authorization for military action against Syria has renewed discussion over the meaning and impact of the War Powers Resolution. Some commentators, including Peter Spiro, have argued that President Obama’s decision to seek authorization places executive foreign policy prerogatives in serious jeopardy. Given that part of the purpose of the War Powers Act was to prevent the executive from undertaking conflicts like the Korean War and the Vietnam War, it makes sense to wonder what potential effects the decision to seek authorization for the use of force against Syria might have on U.S. commitments in Asia.

What does the War Powers Resolution require?  The most well-known elements include the requirement that the President consult with Congress shortly after using force, and the executive being limited to 60 (extendable to 90) days of hostilities without gaining Congressional approval.  However, section 2c (under the “Purpose and Policy” heading) while probably not enforceable in any meaningful sense, does describe the intent of the law as ensuring that the President only go to war when:

“The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

Again, the chances that this clause would be enforced in any meaningful way under any imaginable circumstances approach zero. However, it is conceivable that a President might share an expansive view of the War Powers Resolution (some have argued that Obama’s decision to seek prior authorization from Congress implies this). How might this affect some extant U.S. commitments?

With regards to either South Korea or Japan, there would be little legal difficulty in using U.S. forces without immediate Congressional authorization. An attack by China or North Korea would clearly place U.S. armed forces in imminent jeopardy of attack, triggering any authority the President might need in order to conduct those conflicts (although the conduct would presumably need to be pursuant to the other elements of the WPR, such as notification, consultation, and time-frame). Moreover, the wide range of bilateral agreements between the U.S. and Seoul and Tokyo would likely suffice to satisfy the statutory authorization requirement, as well.

Enjoying this article? Click here to subscribe for full access. Just $5 a month.

The ability of the U.S. to intervene in a cross-straits conflict with China over Taiwan is more hazy. With no deployed units in Taiwan, U.S. troops would only be placed in jeopardy after intervention. Given the speed at which the modern PLA might defeat Taiwanese resistance, the delay required for Congressional authorization (to the extent, for example, of the current debate on Syria) could make it impossible for the United States to meaningfully intervene. The Taiwan Relations Act specifies some responsibilities on the part of the United States towards Taiwan, but it would be hard to argue that this constitutes specific authorization. Although the stakes are lower, a similar logic applies to U.S. intervention in conflict between China, Vietnam, and the Philippines over the South China Sea.

That said, given the amorphous nature of the WPR and the practical unenforceability of its most significant requirements, any decisions about intervening in a war between China and Taiwan or between China and one of the South China Sea disputants would likely treat legal considerations only as an afterthought. Indeed, the Obama administration worked around the WPR in the Libya context by arguing that its military actions did not, below a certain level, constitute hostilities. Given the difficulties of enforcing any robust conception of the WPR on a recalcitrant administration (including the general unwillingness of Congress to assert foreign policy preferences, and the reluctance of the judiciary to intervene on national security questions), the WPR will likely only restrict future administrations insofar as they choose to be restricted.