This paper is a lightly-footnoted and modestly expanded version of my presentation at the Georgetown Journal of Law & Public Policy Symposium’s panel on Executive War Powers, Syria, and President Obama’s “Red Line”—Did President Obama Have the Power to Use Force in Syria without Congressional Approval? While criticizing the President’s policy decision, this paper argues that the President would have been well within his authority to use force. Relying r on a whole text reading of the relevant constitutional provisions, it argues that the President’s authority to use force is virtually plenary, while Congress’s authority is limited to governing the legal effects of war and limiting executive discretion solely through the power of the purse. It rejects functional arguments in constitutional interpretation, but it recognizes that functional arguments in our modern Age of Terror happily confirm conclusions that can be reached by textualist modes of constitutional interpretation. Finally, it argues that these conclusions reinforce constitutional and democratic accountability and are not seriously undermined by any possible international law limits to presidential discretion.
Antonio F. Perez, A Whole Text Reading of the War Powers Clauses: Why the Constitution’s Text Obviates Esoteric War Powers Debates and Encourages Policy Flexibility and Democratic Accountability, 12 GEO. J. L. & PUB. POL’Y 861 (2014).