Congress and POTUS Agree: The President Can Bomb Whomever, Whenever He Wants

Congress may let the president do anything when it comes to war, but that doesn't make it constitutional.



The U.S. launched airstrikes against the regime of Bashar Assad in Syria last night, opening up a new front in the two-and-a-half-year U.S. involvement in Syria—while the Trump administration argues it does not need congressional authorization, such an action needs approval from Congress. Congress' failure to this point to assert its constitutional role in war-making should not preclude it from acting now, nor should its history of inaction ever be legitimized as a precedent.

Up to now, U.S. actions have targeted the Islamic State (ISIS), whose self-styled capital is in Raqqa, Syria. The Obama administration, which entered the U.S. into the anti-ISIS military campaign, argued the actions were covered under the 2001 AUMF against the perpetrators of 9/11 and their "associated forces."

While President Obama occasionally expressed a desire for Congress to authorize the campaign against ISIS specifically, the Republican Congress, willing in many other domains to challenge President Obama, never mustered the political will to either approve or prohibit Obama's war on ISIS.

The last time Congress managed to even vote on the issue of authorizing military action was in 2011, when a number of resolutions related to the U.S.-backed intervention in Libya were considered by Congress. The strongest ones specifically defunded the Libya campaign—Republican leaders in Congress did not back it.

Those votes came after U.S. military action in Libya had already started. Obama argued the campaign was authorized by a U.N. Security Council resolution and the Arab League Neither suffices as a replacement for congressional authorization, even if Congress doesn't assert its powers. Obama also argued the military actions didn't fall under the purview of the War Powers Act because they didn't involve "sustained fighting or active exchanges of fire with hostile forces… [or] U.S. ground troops."

The last time a president asked for authorization ahead of a military engagement was in 2002, when President Bush sought, and the Congress approved, an authorization for the use of military force in Iraq, leading eventually to the U.S. invasion of and war in Iraq.

The Trump administration's justification for its airstrikes on Syria manages somehow to be even weaker than Obama's Libya arguments. "It was in the vital national security interest of the US to prevent and deter the use of deadly chemical weapons," Trump said last night. "There can be no dispute that Syria used banned chemical weapons, violating its obligations under the chemical weapons convention and ignored the urging of the UN Security Council."

But the Security Council canceled a vote scheduled for last night, and the Chemical Weapons Convention, to which the U.S. and Syria are party, does not include a mechanism that permits member-states to unilaterally enforce it. Instead, it offers a procedure by which a member-state can demand inspections of any other member-state. Syria joined the convention in 2013, in the wake of a chemical attack that brought the U.S. and the West to the brink of military intervention. Back then, President Obama said he would go to Congress for approval first. He never got it, and eventually the situation was resolved with a negotiated disarmament Syria now appears in violation of.

Pro-interventionist pundits insist the Syrian airstrikes have made Trump a real president. "Trump became president" after ordering the airstrikes, CNN's Fareed Zakaria argued. Such militaristic president-worship, last seen after the joint session of Congress where Trump honored the widow of a U.S. service member killed in a raid in Yemen, was a toxic political norm under previous presidents and is toxic now. Trump also cemented his position as president another way—by continuing the tradition of unilateral military action by the president while also, like his predecessors, pushing the envelope even further.

As a celebrity, Trump learned that people would let him get away with a lot. "When you're a star, they let you do it," Trump said of otherwise unwanted sexual advances. "You can do anything." Members of Congress and the media praising Trump for his unilateral, unauthorized action in Syria, are teaching him a similar lesson about the limits of presidential military power—that for all intents and purposes such limits don't exist.

The time to push back is running out for Congress. If they can't do it with a deeply, widely unpopular president who in his first three months in office has antagonized not just members of the opposition party but members of his own as well, they may never be able to.

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  1. That’s weapons grade alt-text.

    1. And you just let Krayewski do it because he’s a star.

  2. Blowing shit up makes the US look badass. And who doesn’t want the US to look badass? I’ve heard that some lowly worms out there will throw money at politicians to keep the badass US gaze off of them.

  3. The Constitution clearly does not allow the President to engage in any military action he wants. Otherwise, there would be no provision for Declaration of War. The Founders did not want to tie the hands of the Commander-in-Chief to zero military action in case of attack.

    I am a stickler for the Declaration of War clause. Any defensive US military action in progress- the President better be walking his ass over to the Capitol to ask for a Declaration of War.

    When we take military action so lightly, it just further weakens the USA’s moral high ground.

    1. Please cite a source for “the USA’s moral high ground”
      Thank you.

    2. I am a stickler for the Declaration of War clause.

      So you’re a masochist?

  4. Killing people is a big responsibility. Congress is full of cowards that are worried about every vote. I’m not surprised that they’re happy to leave the decision to the president.

    1. Votes are too public and voting records have been known to bite Congressmen in the ass before. Safer just to allow military action until thousands of Americans get killed, then publicly say how they were against the military action. Real chicken-shit, in my opinion.

  5. Congress doesn’t care because their constituents don’t care.

    1. You have it right. I get blank stares from lefties and republicans when I say we have been in constant military action for the last 16 years. Longest war in US history without a Declaration of War.

      1. Not to imply that this action, or pretty much any of Obama’s actions would be covered by the AUMF, but wasn’t the AUMF a declaration of war?

        1. No, but it at least gave the Prez legal cover.

      2. 16 years? Try for the last 200+ years. Seriously. This is more or less how they figured out they could get around the ‘no standing army’ thing for the longest time. Just always be at war with somebody!

        1. Almost Orwellian.

    2. Precisely.

      Which is why the unconstitutionality is moot. The Constitution runs on norms when those are violated, there are no remedies approved by the Constitution.

      Congress needs to declare war. Congress does not, the President goes to war.

      What now?

  6. Yeah, I’m starting to think that Congress doesn’t actually give a shit about war powers, regardless of how “deeply, widely unpopular” you think a president who practically just took office is.

  7. Ave, Imperator, morituri te salutant.

    1. *thumbs down*

  8. In case someone is interested, I wrote a very detailed blog post, in which I examine the evidence about the recent chemical attack and compare the situation with what happened after the chemical attack in Ghouta in August 2013. I argue that, in that previous case, the media narrative had rapidly unravelled and that, for that reason, we should be extremely prudent about the recent attack and not jump to conclusions. It’s more than 5,000 words long and I provide a source for every single factual claim I make. I really believe it’s the most through discussion of the allegations against Assad with respect to his alleged use of chemical weapons out there. Please share it if you thought it was interesting.

    1. I read it, it was…but did you have to keep disclaiming, “This doesn’t prove…?” every para.?

  9. I’ve been making this point elsewhere today, and I just want to reiterate it here:

    When Reason was putting up articles from various angles claiming that immigration law should effectively be ignored, I pointed out that a) setting the rules of naturalization is an enumerated power of Congress in the Constitution and b) if you’re encouraging everyone to ignore Congress’ enumerated power on immigration, you’re going to have a hard time opposing the next military action without a declaration of war–because those two powers are enumerated in the same list.

    You don’t get to condemn the President for ignoring Congress’ enumerated power and then turn around and encourage everyone to ignore Congress’ other enumerated powers. Otherwise, you end up looking like the ACLU, fighting for everyone’s constitutional rights–except for the Second Amendment rights.

    If we’re going to make the argument that Congress’ enumerated powers should be sacrosanct–because they’re enumerated powers–then we need to treat them all that way, including Congress’ power to set the rules of naturalization. So, the next time I read about how deportation is inherently wrong, that cities should ignore immigration law, etc.–without regard for Congress’ enumerated power to set the rules of naturalization–I’m going to look and see who said what that time back when Trump decided to go all Michael Bay on Syria.

    1. It’s not an easy thing to say that you disapprove of a policy but you’ll defend with your pen Congress’ duty to set it.

      1. It should be easy for libertarians.

        Incidentally, I’d oppose what Trump did in Syria today–even if Congress had given him an authorization.

        Meanwhile, I think our immigration policy should be far more open and expansive, but imposing an unpopular immigration policy on the American people is like imposing an unpopular war. That power of setting the rules of naturalization properly belongs with Congress–even if I disagree with the policies they enact.

        And if we want to honestly oppose military actions for being unconstitutional, we need to be consistent in our respect for those enumerated powers. Just because Congress does things we don’t like with their enumerated powers doesn’t mean immigration is a right or that what Congress does is unconstitutional just because we don’t like it.

        It’s like sticking up for the Fifth Amendment rights of arsonists. Just because I don’t like the way the principle shakes out all the time (sometimes people like OJ go free because of the Fifth Amendment), doesn’t mean our principles should go out the window.

        1. Everyone has a basic human right to emigrate to wherever they want to live peaceably. What the US Constitution says about that, and what the US government does in regards to that (ignoring or following the Constitution), doesn’t change that basic human right.

          1. “Everyone has a basic human right to emigrate to wherever they want to live peaceably.”

            Not exactly. For instance, they need to stay off my property without my permission. Trespassing on my property peacefully is no excuse.

            Rights are choices, and to have a right is to have the right to make a choice. The Second Amendment, for example, doesn’t give me the right to shoot people indiscriminately. It just protects my right to choose to own and carry a gun.

            Emigration isn’t a fundamental right like that. Maybe they can choose to come here, doesn’t mean we’re obligated to let them in. You don’t have a fundamental right to dwell on other people’s property without their permission, and Congress making the rules of naturalization, by treaty, etc. is how immigrants get permission to be on U.S. territory.

            It’s very much like property rights. When I say something is my property, it means I get to choose how it’s used, who uses it, etc. The United States possesses territory. We choose representatives and senators to decide who gets to come here and who doesn’t. Rights aren’t like that–they don’t and shouldn’t depend on the outcome of a popularity contest. Whether to declare war, who gets to come here, etc., on the other hand, that’s a perfectly appropriate place for democracy. That enumerated power was given to Congress–and it’s right where it should be.

            1. I suppose I should add that Congress is still bound not to make laws that violate, for instance, the First Amendment–even when it’s making the rules for naturalization. “Congress shall make no law . . . “.

              That’s what it says. That’s what it means.

              In other words, it’s important that even the rights of illegal immigrants are respected by the government. They’re entitled to all the rights of American citizens except the right to vote, hold office, and be here.

          2. Everyone has a basic human right to emigrate to wherever they want to live peaceably.

            R-i-i-ight! I tried to merely visit Canada for a fishing trip with my uncle- and was denied entry because I didn’t apply for a waiver for a DUI I stupidly admitted from 10 yrs earlier. And, I wasn’t even driving- I guess the fish didn’t think I was “peaceable”…

            Remind me the country that allows more legal immigrants than any other?

            1. Rights are not created, defined by, or determined based on the respect shown for them by, government. Idiot.

    2. How far up Trump’s ass did you have to crawl to find some dingleberries to munch on?

      1. Ken’s absolutely correct, but only if you have principles and believe in the rule of law over the rule of man.

        1. His is exactly the same rationale that every partisan hack has used for decades now. It is not an assertion of principle. It is an abdication of principle – asserting that principle first has to apply to opponents and only then can it apply to one’s own.

          And BTW – I do believe that the US has the constitutional authority to define/manage immigration and that our failure to do so has created unfairness at the bottom of the ladder and cronyism at the top. But that has NOTHING to do with war. The only person who has to comply with Congress re war is the President. The purported duty to comply with (ie enforce) federal rules re illegals is more akin to the Fugitive Slave Act of 1850 – requiring everyone in the US – in free states or not – to enforce federal law.

    3. But I think this is one difference between a constitutional conservative and a libertarian.

      A constitutional conservative might say (broadly speaking): “Congress can do anything it was consistent with its enumerated powers”.

      While a libertarian might say (broadly speaking): “Congress can do anything it wants consistent with its enumerated powers and consistent with the NAP“.

      So if Congress constructs immigration rules that violate fundamental liberties, such as property rights or contract rights or association rights, then libertarians have a reason to oppose those rules even if they are completely consistent with the Constitution.

      And even if Congress had authorized a war against Syria, I don’t think libertarians should be jumping up and down and saying “hooray we’re violating the NAP against Syrians *legally*!”

      Personally I think it’s wrong to prioritize the “no legal justification” rationale for opposing Trump’s Syrian intervention. Fundamentally, it’s wrong because *we are the aggressors against Syria*, not because Congress didn’t approve of it.

      1. There is plenty of dissent on the NAP among libertarians.

        Just because something is a bad idea doesn’t mean it’s unconstitutional.

        There are millions of things that are both bad ideas and perfectly constitutional.

        I oppose bad ideas for all sorts of reasons. Just because it’s constitutional doesn’t mean libertarians have to support it, but that should apply to everyone–not just libertarians.

    4. Naturaliz’n is an enumerated power. Is immigr’n?

      1. Nope, but let Republicans posing as libertarians tell you differently

  10. I gotta admit, Obama at least sought out Congressional approval on a few occasions and followed it at least once. Admittedly, that’s over 8 years, but this is an area where Obama was at least marginally better so far. I have a feeling I’m going to be saying that a lot over the next four years, which is disgusting.

  11. “eventually the situation was resolved with a negotiated disarmament Syria now appears in violation of.”
    Actually, they never disarmed.
    They did allow some weapons (the “declared” ones) to be removed and destroyed, but not all were declared.
    At least this time we know there are/were weapons of mass destruction.
    And in modern times, for good or bad, nobody actually declares war, because that triggers treaties, some known, some secret. You actually declare war on Syria, then find out they have a secret treaty with Russia. Russia then has to declare war on the US. Then all of NATO has to follow the public treaty and declare war on Russia. And so forth. Not so good for humanity or the planet.
    Besides, there is not even an international process to declare war on something that is not a nation state.
    So we play around with “authorizations”. In the current reality, the commander in chief can do what he feels is needed in the way of using the forces under his command. Congress can refuse funding if they wish to leave those forces stranded in harm’s way.

    1. You play too many strategy video games. Back in the real world, the notion of secret treaties which are actually binding is facially hilarious.

      1. Though Secret Treaties is an amazing album.

  12. Obama also argued the military actions didn’t fall under the purview of the War Powers Act because they didn’t involve “sustained fighting or active exchanges of fire with hostile forces… [or] U.S. ground troops.”

    But there is a clearly defined test for when the War Powers Act applies, and that ain’t it. This is:

    In the absence of a declaration of war, in any case in which United States Armed Forces are introduced…

    (2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces…

  13. A most unconstitutional airstrike, but it seems that Congress, as a whole, is willing to shirk its appointed duties, as per the rule of law.

  14. Let’s see whether Trump’s approval polls go up or down.

  15. You see, a missile strike isn’t an act of war, so…..

    It’s funny, take away someone’s free speech or any other individual right and they’re outraged. Kill and destroy in their name and they get aroused.

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  18. Obama attacked and committed acts of war against Libya. Trump bombed and committed acts of war against Syria. Both Presidents asserted that they “Can Bomb Whomever, Whenever He Wants”. Congress is complicit with the Presidents unconstitutional acts of war. In effect, the Presidents and Congress are, by assertion, “…abolishing our most valuable laws, and altering fundamentally the forms of our governments”. The Federal Government has become a tyrannical dictatorship by “…declaring themselves invested with power to legislate for us in all cases whatsoever”. We the People must reassert that the Federal Government’s powers are derived from the “…consent of the governed”. A “…long train of abuses” has reduced We The People to “absolute despotism”. It is our right, it is our duty to throw off such government, and provide new guards for our future security. Take Back America!

  19. The President does have the ability to act in times of a clear and present danger without war powers and with Congress. That is inherent in the Constitution. The thing is it is up to the President to determine what the clear and present danger is. I do not think the Syria situation was, but if Trump thinks so, he did have the Constitutional right to do so. Personally I think he just used the term and did not believe it, but I don’t read minds.

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