Fecteau: Trump’s War Power; U.S. Military Operations in Syria Are Constitutional
Sunday, April 16, 2017
Our founders seemed to have muddled the waters on purpose. The original text of the Constitution said Congress could “make war” which was later changed to “declare war.” Some, including legal scholar Jack Goldsmith, believe this provides the executive branch the flexibility needed to conduct military engagements overseas, no Congressional approval required.
The U.S. Courts have further cited that wars without formal declaration or authorization are justified. The U.S. courts typically dismiss lawsuits over executive overreach in relation to waging war by citing what is called a political question doctrine – a dispute between the branches of government. A political question arises when not every political avenue has been exhausted (e.g. Congress cut aid to South Vietnam). Another common reason is that the plaintiff "lacks standing" or the plaintiff has something to lose.
Congress doesn’t need to formally declare war or even authorize military action for the strikes in Syria. Future military strikes are well in line with the presidential prerogative or powers inherent to the executive branch in the Constitution. In fact, since the birth of our Republican, over 100 military actions such as the strikes in Syria were conducted without Congressional declaration or approval.
In the past, even our founding fathers acted without authorization from Congress. Without specific authorization, President Thomas Jefferson ordered attacks on the Barbary pirates who kept seizing American ships off the coast of North Africa so long as they were “defensive” in nature.
In the shadow of Vietnam, passed over a veto by President Richard Nixon, Congress attempted to assert (or reassert?) its oversight over the executive branch’s war-making ability with the passage of the War Powers Resolution. The War Powers Resolution set forth a number of key reporting requirements, especially one that says the president cannot use forces for longer than 60 days without a specific authorization or declaration of war and prior consultation. If no formal authorization was passed or declaration declared, Congress has a duty to pass a concurrent resolution ending the war overseas (this has never happened).
A number of problems exist with the War Powers Resolution. The resolution doesn’t specify when consultation should take place, nor what is considered a full consultation. The resolution also doesn’t specify who the president should consult. In addition, presidents have specifically questioned the Constitutional legitimacy of the War Powers Act.
Regardless, military intervention continued unabated. President Ronald Reagan ordered a strike on Libya, code-named Operation El Dorado Canyon, in response to its terrorist activity without formal Congressional approval – though he consulted some members of Congress -- and also ordered an invasion of Granada to reestablish democracy in the Caribbean island country, again, with no Congressional or even U.N. approval. President Bill Clinton ordered strikes on Afghanistan and the Sudan after several terrorists’ attacks were planned from those respective areas without Congressional approval or formal U.N. sanction. President Clinton also ordered the military to reestablish democracy in Haiti – no Congressional approval.
President Barack Obama also asserted his executive privilege in Libya. After the Arab Spring, Libyan dictator Muammar Gaddafi threatened to butcher the people of Benghazi, a city of some 500,000 people. The United States won approval from the U.N. for a no-fly zone, and a limited military intervention, saving countless lives. However, Mr. Obama never received formal Congressional endorsement for the military operation.
Just as presidents have done in the past, President Trump used his constitutional authority to order the U.S. military to intervene overseas in Syria. Mr. Trump did not go to Congress on Syria like Obama did in 2013, but he already has the inherent latitude as Commander-in-Chief. The Syrian government’s breach of international law obviously makes us all less safe; in a way, he was protecting U.S. interests.
Some may not like Mr. Trump personally, such as yours truly, but he has the inherent authority as our Commander-In-Chief to commit to additional military action in Syria if he so desires. He has centuries worth of precedent backing him up. If Congress doesn’t like it, cut funding to that respective military operation just like Congress did during the Vietnam War – too easy.
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