In the wake of Biden’s air strikes against Syria, many of his opponents are returning to statements he and Kamala Harris made critical of Trump for similar kinds of strikes. Although I understand the inevitable politics of these things, I would suggest that we’re witnessing the separation of powers succeed. As President, Biden has a different set of responsibilities than he did as a presidential candidate or as an opponent of the past President. Given this difference, it shouldn’t surprise us that he is behaving differently. The Constitution itself induces and even encourages such hypocrisy. Senators have certain kinds of concerns and responsibilities that naturally lead them to oppose aggressive presidential action. It’s better for our constitutional system that they not adopt the executive perspective and concern themselves only with security. They ought adopt a legislative perspective that checks presidential aggression by criticizing it. We should hope that Republicans who might have supported Trump’s military actions are now critical of Biden’s. Presidents ought to be aggressive in ways they might not have imagined prior to holding office; their opposition ought to be critical in ways they might not have been previously. To preserve our security, we sometimes need that executive aggression; to preserve our security, we also need vigorous criticism of executive aggression.
Dr. Kleinerman, I respect your general premise regarding the different perspectives of Congressmen and President in terms of war powers; however, your argument seems incomplete.
The question of airstrikes in Syria is not necessarily only one of presidential war powers; it is also a matter of prudence. There is a strong, bi-partisan sentiment seeking the reversal of our policy of continuous foreign engagement. As such, Biden’s action isn’t questionable solely on constitutional grounds as you have presented. If Biden does have the mandate from the people to rely upon negotiations and diplomacy, then he needs to make a greater justification of his decision to contradict this position and to engage in violence–even if it is after the fact to protect secrecy and dispatch. This aspect is a matter of political legitimacy rather than pure constitutional authority.
More importantly, I do not understand your claim, “We should hope that Republicans who might have supported Trump’s military actions are now critical of Biden’s.” This statement–coupled with the fact that several prominent Democrats in foreign affairs positions in Congress are praising Biden’s airstrikes rather than deriding his breach of authority–seems to reduce the argument into party politics rather than a constitutional evaluation of proper authority. I think we both agree that hyper-partisanship is a significant problem, but the reversal of party positions in this way is even more destabilizing because it diminishes public trust.
Again, I understand your central thesis that the Constitution specifies different roles with different spheres of authority to incentivize competition for power that ultimately makes our country safer and more stable. I believe that this was the intention and design of the system, but this ultimate goal is no longer achieved. Either our system is failing, or we have failed it.
I would appreciate your feedback when you have the chance.
GME
https://news.yahoo.com/congress-reacts-us-airstrikes-syria-180056620.html
First, it’s not possible to separate political interest from constitutional authority. Someone will claim constitutional authority when they’re politically interested and the opposite if they’re not interested. Of course, there are limits to that. But the political interests themselves line up with the constitutional authority of the place. That was my point. Now that Biden is President his political interests line up with keeping safety and security, which likely means being more aggressive. Second, I don’t agree with you that he needs to justify violence in advance when it’s surgical and strategic. If he were attempting to take us to war, then he would have to justify. But, given the nature of presidential authority in our current constitutional order (which is intrinsically related to our place in the international order), I think it would be unnecessary and imprudent to justify every surgical strike. Just as I applauded Trump’s surgical strike at Soleimani, so too I applaud these surgical strikes. If they’re justified in advance, it makes them harder to achieve and it changes the nature of the action. It makes us look like we’re actually looking for war. In a different age and a different international order, I would worry about these. But I think Congress and the separation of powers system itself needs these kinds of things from the President.
As for the party politics question, the separation of powers, since the very beginning, has been transformed by party politics. But whereas some political scientists think that means it no longer applies, I would say that it just changes it some. Instead of partisans of the branch, as the founders might have imagined, you get political party partisans using the arguments of the branch to justify their opposition. Although that won’t work to foster separation of powers arguments as much if there’s unitary control, it still achieves something. Moreover, partisans within the party can sometimes distinguish themselves (thus satisfying their ambition) by stepping outside the party to defend the prerogatives of their branch (think Mitt Romney in the Senate in response to Trump). So separation of powers is still working, just not as well.
Additionally, the separation of powers transforms party politics. Democrats are becoming more hawkish because they have their own President in office. Republicans are likely to insist more on legislative power (think 1994 in response to Clinton).