Late Night Legal Puzzle

++When President Obama asked Congress for authorization, it took his advisers by surprise because no one had been consulted on this. I thought it was a shrew move since Congresspeople from both sides of the aisles were clamoring for it. Alright guys,I see you and call your bluff. You have to own part of this. Clever, no. Some believe it was a clever way the President could have Congress make him not to strike Syria.  But John Kerry keeps insisting that the President has the authority to do it anyway.

++From President Obama's subsequent actions, it is quite clear he does want to launch surgical strikes against the regime. His own emotional statement at the G-20 about the children being gassed shows that he honestly wants to act. Clearly,his dozens of consultations with Congress types prior to their return from recess showed a man amping up his case. Coupled with that, John Kerry two very emotional arguments for the strikes.

++Blurred in the last week has been the defeat of Prime Minister Cameron in the UK, the first loss on a military movement in Britain since 1782. Next, the French parliament demanded that President Hollande consult with them. Bernard Henri-Levy, who is for the strikes against Syria, explained in an op-ed posted at the Daily Beast that there is absolutely no requirement under the French constitution or tradition for a President to do any such thing. 

++Which brings me to John Kerry's frequent statements about the President's authority. Someone at Democraticunderground posted a comment tonight that sheds some light over this. Anti-interventionists have been gearing up to defeat the resolution as if that resolved the whole issue. The poster said,"au contraire " ,if the authorization is defeated,it means Congress said literally nothing, nothing was passed,hence legally nothing was said. To actually prohibit the President, you would have to affirmatively pass a bill that prohibited the President from acting. In that case, you would most likely have to pass a bill prohibiting the use of funds for the Syrian action. 

++We were once at this place when then Representative Chris Dodd got the house to pass the Boland Amendment that prohibited funding the contras in Nicaragua. But a close reading of the law at that time actually had a loophole that the Reagan Administration cunningly exploited. Because Congress could not constrain the executive totally they allowed that NSC could work on the issue. Hence, you had Bill Casey teaming up with Oliver North to secure third party funding for the contras. The rest is history with the Iran-Contra scandal. But it is wrong to assert that the Boland Amendment legally shut down the whole contra initiative.

++The odds of either the House or the Senate prohibited the President from action are slim. Rand Paul tried that the other day when he was concerned about statements from Kerry that the President could strike anyway. Paul wanted language in the authorization insisting the President couldn't. The Senate turned him down. So, next, we have Rand Paul threat of filibustering the authorization. Let's say he succeeds, then the Senate has not acted, as we have seen countless times in Congress. Then there was no action, no bill, no act of Congress. And yes , the President could act unilaterally. In fact, I believe a Rand Paul filibuster would provoke a negative popular reaction and Harry Reid would then pull his nuclear option. To filibuster an issue of war and peace, would be totally outrageous.

++What President Obama did by asking Congress for a vote was buy time. The naval vessels are already there in the Mediterranean. He could strike today, tomorrow or a few weeks from now. In essence, he is practicing his own form of gunboat diplomacy. Their presence has been enough to disrupt Assad's plans and force him to recalibrate the positioning of his forces. Meanwhile, President Obama continues to secure the military assets from other countries he will need. It also buys him time to generate sufficient concern about Syria in the international community.

++The optics of a political defeat are something intangible. But if he manages to persuade enough people with his interviews and address to the nation,he can feel free to strike. We know that there will always be about 40% against any action he makes, so he needs to get it close to a tie in popular opinion to feel he has enough popular support for the move.

++As for impeachment,the poster said basically you can be impeached for spitting on the sidewalk. The way the House is composed,they could impeach just because he exists. To make striking Syria an impeachable offense, they would have to pass a law saying that "attacking Syria is a high crime". Of course, remember Assad was our ally against terror. Under George W. Bush, the CIA renditioned prisoners to Syria where they were tortured under Assad. So the pro-Assad Republicans might actually argue for such a law. But Congress gets skittish about restricting the power of the Commander-in-Chief to act. 

++This leaves us with a split vote: Senate votes for and the House votes against. Does that do anything to Obama's willingness to act? Don't know.