Somin in WSJ: Duty to Uphold the Constitution

Despite the obstacles inherent in attempts to sue the government, Professor Ilya Somin cautions in the Wall Street Journal's Law Blog that the president still has an obligation to act within his constitutional authority.

In the article, which considers whether the president could be sued for ordering military action in Syria, Somin observes that, "The president must stay within constitutional bounds regardless of whether a court rules on the issue or not. He has an independent duty of his own to uphold the Constitution, as his oath of office states." 

"If he is widely perceived as acting unconstitutionally, that will undermine public and elite support for any intervention and make it harder for him to achieve success in the resulting conflict," Somin adds.

Can Obama be Sued for Ordering Military Action in Syria? The Wall Street Journal, August 30, 2013. By Jacob Gershman.

"As President Barack Obama weighs a military strike in Syria, some prominent legal experts have said the use of force against Bashar al-Assad’s regime would be a 'constitutional stretch.' And more than 100 U.S. lawmakers have signed on to a letter warning the president that 'engaging our military in Syria . . . without prior congressional authorization would violate the separation of powers that is clearly delineated in the Constitution.'

"But if Mr. Obama pulls the trigger, there’s very little that anyone can do about it — at least in the courtroom. Here’s why.

"Since the enactment in 1973 of the War Powers Resolution, members of Congress have sued presidents eight times to force them to comply with the law and got nowhere, according to a 2012 report by the Congressional Research Service.

"The resolution requires the president to notify lawmakers within 48 hours of sending armed forces into 'hostilities,' absent a declaration of war, and to 'terminate' such operations within 90 days unless Congress specifically authorizes continued involvement. Article I, Section 8 of the Constitution gives Congress the power to 'declare War.'

"'In each instance where a ruling was delivered, the reviewing court refused to render a decision on the merits,' states the Congressional Research Service report.

"The biggest hurdle for U.S. lawmakers is that they lack standing to sue. Plaintiffs are required to show that they’ve suffered a concrete, particular injury, one that’s distinct from that incurred by the average guy on the street. Dennis Kucinich and nine other members of Congress lacked standing 2011 when they sued the Obama administration in federal court over the U.S. military intervention in Libya."