Role of Congress in use of force

‘ Joint resolution’ has same effect as a bill

WASHINGTON In seeking authorization for the use of force against Syria, President Obama is asking Congress to do something it’s done only four times since the Vietnam War.

The debate over the use of force against Syria also raises age- old constitutional and legal questions about the role of Congress in declaring war.

As soon as next week, Congress will vote on a “joint resolution” to authorize the use of force. A joint resolution has the same effect as a bill, and the process is the same: Both chambers must pass identical language, which would then go to the president for his signature.

The Senate held a hearing on the issue Tuesday and is moving first.

The Senate’s draft language, released by the Senate Foreign Relations Committee on Tuesday night, imposes a 60- to 90day time limit and does not authorize ground forces. That proposal curtails Obama’s original proposal, which authorized him to use force “as he determines to be necessary and appropriate.”

Sen. Robert Menendez, DN. J., who chairs the committee, said the goal was to craft language that would give the president the authority he needs, but “tailor it so this isn’t an openended engagement” and specifically wouldn’t put American troops on Syrian soil. He proposed the resolution with the ranking Republican on the committee, Sen. Bob Corker of Tennessee.

At least one other bipartisan proposal is circulating in the House. There could be a number of different resolutions debated, and either chamber could pass amendments. If the chambers pass different versions, they have to be reconciled and voted on again.

The resolution might also be subject to a filibuster in the Senate. The late Sen. Robert Byrd, D- W. Va., was a master of Senate procedure and tried ( unsuccessfully) to filibuster the Iraq War resolution in 2002. The Senate overcame his filibuster threat with a 75- 25 vote to cut debate short. Sen. Rand Paul, R- Ky., the most recent senator to mount an actual filibuster, strongly opposes action against Syria.

The War Powers Resolution of 1973 creates a fast- track process for congressional action with no filibuster. But those provisions appear to apply only to situations where the president has already commenced military action — not where he has asked for advance approval. So the resolution “probably” could be filibustered, pending a ruling from the Senate parliamentarian on whether the War Powers Resolution applies, said Adam Jentleson, a spokesman for Senate Majority Leader Harry Reid, DNev. In that case, Obama would need 60 votes to get the resolution passed in the Senate, not a simple 51- vote majority.

Once passed, the resolution is binding law — but like any other law, could be subject to the president’s interpretation of what it means. For instance, Obama has used the 2001 law authorizing the Afghanistan War to authorize drone strikes against terrorists across the globe.

There are other possibilities. If the resolution passes in one chamber but not the other, or if Congress otherwise fails to send a clear message, the president might take advantage of that ambiguity.

“I’m sure he’d say this is a national security crisis. He’d say, ‘ I asked Congress. They weren’t able to pass legislation,’ ” said Louis Fisher, a presidential scholar with the Constitution Project. “I think he could do that, but that he would pay one heck of a political price.”