Ben Kleinerman has made a compelling case that the partisan reversal on constitutional authority for U.S. airstrikes in Syria shows the separation of powers at work. I have a friendly amendment, or at least one to propose: Ben’s case is true with two qualifications.
First, the reversal should be institutional, not partisan. That is, members of Congress should question presidential authority as members of Congress, not based on partisan alignments for or against President Biden. If Democrats and Republicans who stay in Congress across changes in presidential administrations are situational constitutionalists based on who occupies the White House, Madison’s case for the separation of powers—which relies on institutional rather than ideological loyalties—breaks down. Ben writes that “[w]e should hope that Republicans who might have supported Trump’s military actions are now critical of Biden’s.” But the real change is that Joe Biden and Kamala Harris, onetime critics of unilateral executive authority, have switched branches of government, not that the White House has changed partisan hands. Institutional loyalty, the connection of the interest of the man to the constitutional rights of the place, demands that Democrats and Republicans in Congress be willing to question the authority of presidents of either party. Their motive should be to protect their own power.
Second qualification: The institutional aggression to which Ben refers needs principled limits. Counterposing ambition to ambition does not excuse presidents or members of Congress from articulating and abiding by a defensible view of the scope of their offices. Biden has suggested as much in saying he prefers legislation to executive orders. Similarly, President Madison’s case for a declaration of war on Great Britain in 1812 was essentially that a state of war already existed. The resolution of that case in Congress was uncertain. Madison submitted the issue to the legislature anyway.
True, those were different times, both constitutionally and geopolitically. But Madison has also been pilloried as a weak president because he stuck to a narrow view of the executive office even though he held it. If that is weakness, we could use more of it. Stated in the affirmative, we would benefit today from a revival of the lively Congress that debated Madison’s message in the summer of 1812. That would show the separation of powers thriving.