"President Obama and Compliance with Domestic Versus International Law"

The two blog posts alluded to in the title blog post cites Prof. Michael Dorf and he has two good good admonitory posts on violating international law in regard to the Syrian bombing plans.

Marty Lederman in the first two posts discusses the possible logic to President Obama's approach to international affairs, a sort of middle position that all the same has liberal interventionist leanings. This does not surprise me, including from someone who appointed Samantha Powers to the U.N. The stereotypical idea of Obama might be that he would oppose this sort of thing, but opposing intervention in Iraq doesn't mean that. Then, there is the usual citation to a 2007 comment:

“The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” 

This was in the context of bombing Iran. I think too much is made of this, especially when it might be pursuant to some sort of treaty obligation. This is not necessarily a "unilateral" authorization -- it is based on something already authorized by the President with approval by the Senate. Also, "actual or imminent threat" is somewhat open-ended (Obama likes his wiggle room -- he is a pragmatist).  But, talk of "important U.S. interests in preventing instability in the Middle East and preserving the credibility and effectiveness of the United Nations Security Council" (Libya authorization) is pretty weak.  Don't think answers to a test in 2007 is the final answer here, but do wonder if some reporter directly cited the quote to the press secretary.

Back to the title blog post.  Domestic affairs would be important for the U.S., especially since it has such power to effect other nations -- the very idea of bombing Syria suggests this and it's part of our mentality as some sort of world leader. Presidents have for a long time had large discretion in international affairs, even if the Congress has various powers too. It is not surprising to be less concerned about others.

This doesn't mean international law shouldn't matter -- both pragmatically and on matter of principle. The Declaration of Independence speaks of what we "might of right do," and drawing the line in the sand on chemical weapons in part is argued to be as a matter of international norms. But, a sort of international due process is part of that too and it too is of basic importance. There are procedures to go through here, including the United Nations. The U.S. was key in establishing it for just that reason. Upholding proper procedures also pragmatically encourages others to do so. The world is not supposed to be a lawless place where nations have some "right" to do anything they can. It is not a violation of Godwin's Law to note the U.N. was a product of an alternative viewpoint.

Authorization by Congress is a limited improvement to unilateral executive action here as is having some nations (but let's be honest -- an ad hoc rump w/o UN approval only goes so far) supporting the U.S. And, nations do have the power to opt out of treaties, if not the international right to do so without good cause. This only underlines use of force here should be put to the highest test. I have doubts such tests are met.

Meanwhile, Senate Democrats have been considering new language to the authorization, fearing the one offered are too open-ended. Either way, I think there is a constitutional duty here for congressional authorization, particularly given there is no apparent international law duty to use force. This -- as has been noted -- is problematic on its own, but at the very least, domestically, it underlines the importance of bilateral authorization.