More than a year after President Trump first ordered the American military to bomb Syrian government forces, the Justice Department, at the end of May, claimed that the President wields the broad constitutional power to order such acts of warfare without Congressional approval. But is this what the Constiution states?
In a 22-page legal opinion, the Justice Department’s Office of Legal Counsel declared that the President can lawfully and unilaterally direct air strikes targeting Syria because he determined that doing so would be in the national interest. In addition, the attack would carry little risk of escalation. Thereby giving the power to unilaterally declare war.
Did either President Obama or President Trump have the power to declare war?
Under both the Obama and Trump administrations, the executive branch has justified its military operations in Syria as falling under Congress’s 2001 and 2002 authorization to use military force against Al Qaeda and for the Iraq war.
But that authority does not cover the April 2017 and April 2018 air strikes targeting forces of Syrian president Bashar Al-Assad as punishment for chemical weapons. Those operations have been legally disputed because neither Congress nor the U.N. Security Council authorized them. Additionally, there was no self-defense rationale.
The fact is that the Constitution reserves to Congress alone the power to declare war, despite its naming the president as commander-in-chief of the armed forces.
The Founders on Presidential Authority
In Federalist No. 69, Alexander Hamilton, the first U.S. Secretary of the Treasury, notes that the president’s authority
“…would be normally that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces…while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies, all of which, by the Constitution under consideration would be appertaining to the legislature.”
During the debates at the Philadelphia Convention on August 17, 1787, the Framers offered reasons for rejecting the British model. On a motion to vest in Congress the power “to make war,” James Madison, our 4th President, and Elbridge Garry, the 5th Vice President under Madison, moved to change the motion’s language from “make war” to “declare war,” leaving with the president “the power to repel sudden attacks.”
Roger Sherman of Connecticut is an early American statesman and lawyer, as well as a Founding Father of the United States. On the subject of Presidential Authority, his feelings were that the president “should be able to repel and not to commence war.”
Eldridge Gerry said he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” George Mason was “against giving the power of war to the Executive,” because he was “not safely to be trusted with it…He was for clogging rather than facilitating war, but for facilitating peace.”
The amendment offered by Madison and Gerry passed.”
One Man will not hurry us into war
At the Pennsylvania ratifying convention, James Wilson explained that the American system of checks and balances:
“…will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”
In Federalist No. 4, John Jay explained his objections to Presidential wars:
“It is too true, however disgraceful it may be to human nature, that nations, in general, will make war whenever they have a prospect of getting anything by it; nay, absolute monarchy will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.”
Operating under those incentives, a single executive may “engage in wars not sanctified by Justice or the voice and interests of his people.”
On April 2, 1798, James Madison wrote to Thomas Jefferson, expressing his opposition to allowing a single executive to go to war:
“The Constitution supposes, what the history of all governments demonstrates, that the Executive is the branch of power most interested in war and most prone to it. It has accordingly, with studied care, vested the question of war in the Legislature.”
The President’s path to war
For many years, beginning with President Harry Truman’s initiation of war with North Korea in June 1950, presidents have taken us to war in Vietnam, Iraq and a host of lesser engagements, Libya, Syria, Grenada, and Somalia for example. Presidents from Truman to Trump, liberal and conservative, Republican and Democrat, have rejected the Constitutional mandate that it is the role of Congress to declare war.
Now, the Department of Justice has issued a legal defense for such action.
Those who care any longer about adhering to the Constitution would do well to carefully review the debates which led the Framers to vest this power in the Congress. In an important article, “Unconstitutional Wars from Truman Forward” (Humanitas, Volume XXX, 2017), Professor Louis Fisher of the Center for the Study of Statesmanship at The Catholic University of America, writes:
“The Framers opposed giving a single executive authority to take the country from a state of peace to a state of war. That power existed in the British model…a model the Framers explicitly rejected. In 1793, James Madison offered this judgment: ‘Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued or concluded.’ That constitutional principle endured from 1789 to 1950. With the Korean War, Truman became the first president to take the country to war without receiving congressional authority.”
Until recently, there was little controversy about how America was to go to war. According to the decision in the case of Perkins v. Rogers,
“The war-making power is, by the Constitution, vested in Congress and the President has no power to declare war or conclude peace except as he may be empowered by Congress.”
The War Powers Act of 1973
Congress, sadly, has acquiesced in relinquishing its authority to make war. Enactment of the War Powers Act in 1973 marked a major turning point in the constitutional role of Congress concerning the sending of U.S. armed forces to war. The act generally considered the apex of congressional reassertion in national security, actually broadened the scope of independent presidential power. The act allows the president to go to war without congressional authorization for at least 60 days but requires further authorization after that.
Boston University Professor Angelo Codevilla notes:
“The War Powers Act is a cowardly measure on the part of members of Congress who wish to evade their unambiguous responsibility under the Constitution. It conceded, among other things, that the president may start a war. He may not. It places Congress in the position of receiving a report, a passive, non-responsive role. It allows members of Congress to make an ex-post facto judgment on a war, cheer if public opinion supports it or pile on if it opposes. It is an invasion of the president’s powers as commander-in-chief. The Constitution does not oblige him to report anything to Congress other than the State of the Union.”
Congress has largely abdicated its responsibility.
In 1964, three days after an attack upon U.S. ships in the Gulf of Tonkin by North Vietnam, an attack that is now questioned by most experts, Congress passed the Gulf of Tonkin Resolution giving President Lyndon Johnson the authority to use “all necessary measures” to “prevent further aggression.”
This set no limits as to what the president could do. President Johnson said, “It’s just like Grandma’s nightshirt. It covers everything.”
Conservatives, who claim to believe in strict adherence to the Constitution, have regularly joined with liberals in giving the president the power and ability to make war, on his own. They should review our history more closely in this connection. Daniel Webster, who served as Secretary of State in the early 1850s and was one of the great constitutional lawyers, wrote on July 14, 1851:
“…the war-making power in this government rests entirely in Congress; and that the President can authorize belligerent operations only in cases expressly provided for in the Constitution and the laws.”
The Constitution hasn’t changed, but today presidents engage in acts of war entirely on their own, and the Department of Justice embraces their ability to do so. Those who wish to change the Constitution have been provided with the ability to amend it. Until they do, Congress is granted the right to declare war, not the President.
At least that is the system of government we were given by the founders. However, it certainly does not seem to be the one we have now.
Lead image: NURISTAN PROVINCE, Afghanistan -- A U.S. Army Soldier with 1st Battalion, 32nd Infantry Regiment, 10th Mountain Division, fires an M-16 rifle during a gun battle with insurgent forces in Barge Matal, during Operation Mountain Fire, July 12.