Executive Power

The Constitution and Trump's Next Strike Against Syria

A small-scale strike might be constitutional even without congressional support. But it is also likely to be useless, much like last year's missile strike turned out to be. Large-scale military action of the sort that could make a real difference, requires advance congressional authorization.

|The Volokh Conspiracy |

A Tomahawk missile. Tomohawks were used in last year's US strike on Syria.

President Donald Trump is considering launching another military strike against Syria, in realiation for the Assad regime's likely use of chemical weapons against civilians. Trump says that the strike "could be very soon, or not so soon at all." When and if it does come, however, it probably won't have congressional authorization, just like the missile strike he ordered against a Syrian air base last year, after a previous instance of of chemical weapons use by Assad.

As I have emphasized in many previous writings on war powers, the Constitution does not give the president the authority to initiate a large-scale military conflict without congressional authorization. The Founders specifically designed the Constitution to prevent any one man from having the power to take the nation into war. That safeguard is especially important when the presidency is held by a dangerously ignorant demagogue like Trump. But even more conventional presidents often cannot be safely trusted with such authority. Sadly, the requirement of congressional authorization has often been ignored in recent years, including by Barack Obama when he initiated wars against Libya and ISIS. Obama later admitted that the Libya war was his "worst mistake," though he still refuses to see how the error was exacerbated by initiating the war without constitutionally required authorization.

The requirement of congressional authorization for war is not just a legal technicality that only experts have reason to care about. It helps ensure that we don't initiate dubious conflicts at the behest of a single man, and that we maximize the chances of success if we do start a new war. If the president must secure congressional authorization before starting a war, he is forced to build up a broad political consensus behind his decision, which in turn increases the likelihood that we will stay the course until victory is achieved, rather than bail at the first sign of trouble, as Obama arguably did in Libya. In the absence of such broad support, it is usually better to avoid entering a conflict entirely, rather than start one that is likely to go badly.

In my view, a very limited, small-scale use of force, like last year's Syria strike, might be too small to qualify as a "war," and therefore not require congressional authorization. Many other legal scholars disagree, and believe that almost any initiation of force against a foreign power requires congressional authorization. If they are right, last year's attack was unconstitutional, and the same would be true of any attack Trump chooses to launch now.

But even if a small-scale strike might be legal, it is unlikely to accomplish anything useful, as the experience of the last year demonstrates. Conservative commentator (and Iraq War veteran) David French effectively summarizes the flaws of such an approach:

The president was widely (and mistakenly) praised for his first unconstitutional strike against Syria, but it obviously didn't deter future chemical use nor did it slow Assad's advance against Syrian rebels. Dictators are used to taking losses. They don't care about their people, and they can replace lost equipment. Besides, Assad's true military power lies in his alliances with Russia and Iran.

As French notes, Assad and his Russian and Iranian backers seem more than willing to absorb the losses likely to be inflicted by another small-scale strike similar to last year's. They probably view it as just an expected—and acceptable—cost of being in the brutal dictator business.

A more serious effort to overthrow Assad or at least significantly degrade his military capabilities might have a greater effect. But any such intervention would lead to a conflict that is clearly large enough to qualify as a war, by any reasonable standard. It would therefore require congressional authorization. It may be impossible to find the exact point at which a military intervention becomes large enough to count as a "war," thereby requiring congressional authorization. But this would not be a close case.

French correctly emphasizes that a congressional debate might help clarify the very muddled US objectives in the region and promote serious consideration of what exactly we hope to accomplish. If the goal is to deter future use of chemical weapons, we should give thought to the question of whether such uses really are worse than the vastly larger slaughter of civilians that Assad has perpetrated by using conventional arms. So far, the signal the US and most of the "international community" have sent Assad suggests that we don't object too much if he kills large numbers of innocent people, so long as he does it with conventional weapons. And if we truly care about Syrian civilians threatened by warfare and horrible atrocities, we should end Trump's "travel ban" policy, which indefinitely bars nearly all Syrians from entering the United States.

I am more hawkish than the average libertarian, and therefore more open to the idea that military intervention can be beneficial. But any such effort should come only after the president gets constitutionally required authorization, and built up a broad consensus for the sort of action that—unlike last year's feel-good strike—is actually likely to make a difference. If Trump cannot or will not do that, it may well be better not to launch a strike at all.

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  1. Constitutional and Congressional requirements only seem to apply to Republican Presidents. Funny, that.

    1. You can hardly accuse Somin of only acting in that manner.

    2. Yeah, absolutely nobody questioned President Obama’s attack on Libya.

      https: //www.washingtonpost.com/ opinions/ george-will-obama-needs- congress-to-approve-this-war/ 2014/09/17 (spaces added)

    3. It’s a good thing Trump’s the kind of ant-elite maverick small-gov conservative who’ll be sure to restrict the power of the executive.

    4. The reflexive accusations of media bias whenever folks don’t like something they read is truly the sign of a great American.
      MAGA flows from a mind closed to all unwanted information!

  2. In principle, only Congress can declare war. But Congress has delegated its authority to Presidents repeatedly in recent history. To paraphrase an old cliche, willingness to use power is nine tenths of possessing power. If I let people walk across my property for decades, eventually they gain the legal right to do so. The cowardice of Congress over-rules your theoretical argument.

  3. I believe the last declare war was with Romania in 1942. All others were “conflicts”. Not sure what the difference is.

    1. For the purposes of the constitution and the War Powers Act, the last time we declared war was Iraq. Beyond granting Congress the power to declare war, the constitution does not otherwise describe how this power is to be executed. If congress passes a resolution authorizing military force and states that it is intended to constitute specific statutory authorization under section five of the War Powers Resolution, then congratulations! You’ve declared war.

      1. Actually, no.

        The last time we declared war Constitutionally was in 1941 against Japan.

        The War Powers Act provides for a mechanism for Congress to approve the President taking military actions short of an actual Declaration of War by Congress.

        I could not see Congress doing so today for anything short of another direct attack on US soil.

        1. Respectfully, I disagree. I don’t think that a declaration of war has to take any particular form under the Constitution. Saying something is not declaration of war because it isn’t called a declaration of war is putting form over substance. When you authorize military force against another sovereign country or upon foreign soil, you’ve declared war.

          1. Then why does the War Powers Act exist at all?

            1. You expect it to make sense?

            2. To provide a formal and uniform process under which Congress can execute its powers under Article 1, Section 8. And to reclaim the constitutional power of congress to declare war after Cambodia and other military excursions into the east.

        2. “Actually, no.

          The last time we declared war Constitutionally was in 1941 against Japan.”

          Well if we’re being hyper-technical then actually, no.

          Declarations of war on Germany, Italy, Bulgaria, Hungary and Romania followed the declaration of war with Japan.

          Also, the WPR actually gives the President freedom to initiate military actions which could be considered acts of war without the prior approval of Congress – but only under certain conditions and in a limited fashion.

          Congress has not issued an AUMF or declaration of war that would cover an attack on Syria. As ISIS was an outgrowth of AQI the 2001 AUMF can, IMO, be stretched to cover attacks against them, but not against the Assad regime.

          Is this latest move another one-off? Will Trump seek an AUMF? Will Congress give him the AUMF they denied to Obama? Stay tuned.

    2. I’m not sure Congress has to use the words “declare war” to declare war. The last time Congress authorized the use of military force against a foreign power in advance of the use of that force was Iraq in 2003. I’m not sure functionally how that is different from a declaration of war.

      1. The AUMF on Iraq was issued in 2002.

        The difference between an AUMF and an actual declaration of war (last few were worded along the lines of Congress declaring that a “state of war” exists between the US and another nation) is that an AUMF is, or can be, more restrictive than an actual declaration of war.

        Compare the 2001 AUMF against IS/ISIS/ISIL and the 2002 AUMF against Iraq with the declaration of war against Japan. The AUMFs invoke article 5b of the WPR which requires the President to cease military operations after 60 days unless Congress approves a continuation.(constitutionality aside). OTOH, the DoW against Japan pledges the entire nations resources until a “successful resolution” is achieved and the President does not need to seek continuing Congressional approval.

        An even more glaring example of the difference can be seen in the proposed AUMF against Syria sought by Obama which would have precluded US ground troops entering the conflict (SpecOps excluded, of course).

  4. In part posted before:

    Those interested in the original public meaning of the word “declare” might want to keep then following in mind.

    What is known here as the French and Indian war commenced about 1754. War was “declared” in 1756 by England . . . after several battles over a period of at least two years. This historical background was recent when the word “declare” was written into the Constitution. It would not seem that the framers understood the word “declare” to be synonymous with “start.”

    Cambridge English Dictionary’s current definitions are:

    “declare definition, meaning, what is declare: to announce something clearly, firmly, publicly, or officially”
    “start verb {begin) begin to do something or go somewhere, or to begin or happen”

    Black’s Law online What is a DECLARATION OF WAR?
    “A public and formal proclamation by a nation, through its executive or legislative department, that a state of war exists between itself and another nation, and forbidding all persons to aid or assist the enemy.”

    It appears to me the power to “declare a state of war exists” is not the same as the power to order “war” to commence.

    1. Why would the Constitution bother to grant Congress an entirely cosmetic power?

      1. I have not done the research, but the framers may have followed the example of the relationship between Parliament and the King, i.e., Parliament by withholding a Declaration of War shows a lack of support for the King which was (and is) a substantial exercise of power.

        1. I think it comes down to military actions ordered by the President are just that–military actions.

          Declaring war is a political act against another nation, and that’s why it was built into the Constitution to show that only Congress can declare we–as a Nation–are at “war” with another Nation.

          1. I’m pretty sure historically declarations of war were not purely political – they came with military actions, and vice versa.
            Remember parliament was created because the king needed to give the barons something so that they’d willingly provide him troops. But when you have a commander in chief of a national army, that’s not nearly as much of a check.

            I think it’s as some other have said – this was a grant of power in the military sphere to Congress, which Congress has let pass to the President due to political cowardice. The WPR is not a bad line to draw, but not even that’s enforce anymore (thanks Obama!)

            1. Seems to me, that while congress has the Constitutional power to “declare,” or announce war, it has no power to initiate war given the plain meaning of the word “declare” and that the war powers act cannot modify the Constitution.

              1. Specifying who gets to say what in the Constitution seems kind of a waste of space to me.

      2. Why would the Constitution bother to grant Congress an entirely cosmetic power?

        Why would the Constitution have a list of powers of Congress if the Commerce Clause is an all-powerful cheat code?

        1. Don’t mix up your should and your ought. We’re in should, you parachuted in an ought.

          But of course, I cannot resist the bait. If it’s an all powerful cheat code, why is there no federal murder law? No national public accommodation law? Why did RFRA fail?

          What changed wasn’t the commerce clause, it was commerce.

          1. Don’t mix up your should and your ought.

            I was in neither. I was in “did”. You were asking why he thought that had [did] happened, and I was asking why you thought the other happened. No norms involved.

            why is there no federal murder law?

            I would bet my life that if the 4 members of the left on the Supreme Court thought that state murder laws were not being applied to prosecute murderers, they would quite rapidly vote to allow such a thing, could they scrounge up a fifth vote.

            1. You were clearly arguing that you think the CC is overbroad as currently interpreted (though you also exaggerate the current state of the law). You brought ought to an is-fight I tells ya!

              More proof is you meeting my point with what you’re super sure liberals on the Supreme Court would do. That’s even less a discussion of what the law is.

              It’s weird – there are fine legal and prudential arguments about the current state of the commerce clause being too extensive. But you are pushing a factual dispute that if you allow hypotheticals and some exaggeration, the state of the law is much more extensive than it actually is. That moves from the realm of opinion to just being wrong. And needlessly so!

          2. Now, there is one type of murder that as a reader of Volokh you’re obviously aware isn’t properly prosecuted, but as a Volokh reader you also know there can’t be more than what is it, two or three votes on the Left side of the Court to fix that.

            1. Haha, cagey!
              I can’t even be sure if you’re talking about RICO or abortion or war or something else.

      3. It’s not an entirely cosmetic power if the US doesn’t have a standing military prepared to be utilized at a moment’s notice. With a minimal full-time military and actual congressional control of funding then the declaration of war would provide the authorization for both financial backing (war bonds or the like) and actual mobilization.

        With all the money we toss at the military just in case it’s much less a restriction and more a notice of agreement.

    2. Quotes from the Founders make it clear that they did not intend for “declaring war” to be a symbolic power. They meant to give Congress the sole power to authorize non-defensive military action. The Founders explicitly wanted to move away from Britain’s model in this area.

      Alexander Hamilton: “The President is to be commander-in-chief of the army and navy of the United States. . . . It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the Confederacy; while that of the British king extends to the declaring of war and the raising and regulating of fleets and armies, — all of which by the Constitution under consideration, would appertain to the legislature.” (The Federalist, 69, 1788.) “. . . .’The Congress shall have the power to declare war’; the plain meaning of which is, that it is the peculiar and exclusive duty of Congress, when the nation is at peace, to change that state into a state of war. . . .” (C. 1801.)

      Thomas Jefferson: “We have already given in example one effectual check to the dog of war by transferring the power of letting him loose from the Executive to the Legislative body. . . .” (Letter to Madison, 1789.) “Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided.” (Message to Congress, 1805.)

    3. James Madison: “. . . The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature . . . the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.” (1793.) “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 to the Legislature.” (Letter to Jefferson, c. 1798.)

      George Washington: “The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure.” (1793.)

      1. “This was changed to “declare war” specifically in order to allow the President to defend the country from sudden attacks. “Mr. Madison and Mr. Gerry moved to insert “declare,” striking out “make” war; leaving to the Executive the power to repel sudden attacks.”

        The question becomes what constitutes a sudden attack? At any rate the word “declare” was substituted for “make.”

        *https://en.wikipedia.org/wiki/War_Powers

        1. They changed it so that it was clear the president could “make war” in an emergency defensive manner, such as if the country was suddenly attacked. It was not changed to give the president the power to initiate wars himself.

          At any rate, the chemical attack in Syria, while awful and heinous, is clearly not a “sudden attack” against the United States that would justify or necessitate an emergency defensive response by the president.

          1. Arguably our involvement in ongoing battles in that area of the world are a result of the “sudden attack” on 9-11.

            1. Are you being serious right now? You’re using something that happened almost 17 years ago that had no connection the Syrian regime as justification for a unilateral strike today? I honestly can’t tell if you’re being facetious or not.

              A “sudden attack” is not a justification for perpetual action as long as it is somehow related to an attack that was sudden when it happened. That power is there so if a country invades the US, the president doesn’t have to wait for Congress to declare war before authorizing defensive actions. Or if US troops are attacked overseas, he can order them to defend themselves without needing Congress’s approval. Or if there is a foreign nation suddenly decides to carry out an airstrike against the US, he can order our planes to shoot it down without Congress’s approval. Emergency, defensive measures, when the US is attacked and there isn’t time to wait for Congress to decide, that are directly related to repelling that attack. It doesn’t mean that if the U.S. is “suddenly attacked” at some point, the president can do what he wants for 17 years as long as he can claim it’s somehow related to that attack.

              Forgive me if your comment was a joke and my sarcasm meter needs finetuning. I’m hoping you’re not seriously claiming that an airstrike against the Syrian government today is justified as an emergency defensive response to 9/11.

            2. Arguably our involvement in ongoing battles in that area of the world are a result of the “sudden attack” on 9-11.

              That’s about a 3 on the 1-100 persuasiveness scale, where 1 = the argument for the moon being made of green cheese and 100 = the argument for Keith Richards being god.

              1. Seems necessary to point out the obvious . . . Had 9-11 not occurred it is doubtful we would have been involved in so many battles in that part of the world for all of these years. It is not arguable that those battles produced many unintended consequences among which has been an exacerbation of the instability of some Middle Eastern countries including Syria.

    4. In what way is the AUMF not a declaration of war?

      It authorizes the US to send troops to shoot, bomb, invade, and conquer. It doesn’t matter if they didn’t choose to use the term ‘war’, that’s what it clearly is. Politicians have spent a long time trying to wrap up their actions in nicer-smelling terms, but the courts have spent as much time shooting down those semantic games.

      The AUMF is a declaration of war, and as long as it is in effect, then the President can order strikes. Now, the issue of whether the existing AUMF covers strikes in Syria is a different topic…

      1. The Congress can’t just pass a bill giving away its constitutional powers to the President. That was the fate of the in-line veto.

        At some point the supreme court could similarly constrain the scope of the AUMF.

  5. Congress’s authority over the war power has been lost to the President through adverse possession.

    1. That’s nicely put.

  6. The delay in launching the anticipated severe punishment against Syria for allegedly dropping a barrel of Sarin (or something) from a helicopter on a neighborhood indicates that it is taking time to gather forces in the region to make this a “shock and awe” event in the grand tradition of the interventions of decades past..

    So now we wait and wonder: (1) Are the Russians bugging out for safety or merely rearranging their own forces for battle? (2) Will this be a regime decapitation strike? (3) If Syrian military assets are hiding in civilian neighborhoods are they safe? (4) Is this attack going to be a wild smorgasbord of weapons and tactics because each ally and the different military branches involved will all want to show off their latest capabilities?

    A lot of questions to be answered here, for sure.

  7. If I recall, we were in a declared war with the Duchy of Grand Fenwick for a short time in the 1950s.

  8. I don’t disagree with any of these points made, but in a purely pragmatic sense, I think this is hopelessly optimistic to believe that “congressional debate might help clarify the very muddled US objectives in the region”.

    To put it more starkly, from a purely predictive point of view, I would assign a low likelihood to the conditional probability of (‘Congress clarifies muddled US geopolitics in the Middle East’ | ‘Congress debates bombing Syria’).

  9. Certainly there is not going to be any Congressional action to authorize a strike.

    If any strike would be illegal in Somin’s eyes, it is hard to imagine how the presence of 2000 American troops is legal absent an invitation from the Assad regime to be there.

  10. Ilya, stick to law. You are not qualified to comment on military or intelligence matters. French isn’t either, and his use of the word ‘obviously’ is anything but a substantial argument.

    The existing support given to the Syrian rebels, by the US and other nations, has been very effective at dragging the fighting out for years. The missile strikes last year destroyed helicopters, maintenance infrastructure, and thousands of liters of chlorine. It was not decisive, which is what you and French are trying to redefine the term ‘effective’ to mean. But it cut down on the number of attack for months, just like the airstrikes that killed 200 Russian PMC contractors a few months back were also effective at deterring attacks.

    As long as the US will not perform decisive military actions, such as a full ground invasion, then Assad’s slaughter of rebels will continue until he finally wins. In the meantime, airstrikes and missile attacks will be effective – at keeping a bloody civil war going.

  11. The main problem is that the Founders assumed that the persons elevated into positions of authority would either be A) the sort of people who were familiar with, and compliant with, Constitutional principles, or B) tyrants where it would be obvious that they should be removed, and C) nothing in-between.

    So, Congress has the sole authority to declare war, but the President is commander-in-chief. If the President orders troops to war without Congressional authority, the sole remedy available is impeachment and removal, and if there isn’t a supermajority opposed to the President, Congress has no tool to bring him to heel.

    I’m trying to remember back when Reagan smacked Libya a couple of times if there was Congressional approval. (There are two incidents I’m thinking of… in one, U.S. warships entered waters claimed by Libya, and when the Libyans buzzed them with warplanes, we shot them down. In the other, fighter-bombers from bases in the UK flew around the Iberian peninsula to attack targets in Libya, if I recall correctly, in response to the bombing of a jetliner over Lockerbie, Scotland. Neither France nor Spain let us fly through their airspace to make the attacks.

    1. ” … the sole remedy available is impeachment and removal, and if there isn’t a supermajority opposed to the President, Congress has no tool to bring him to heel.

      Congress also has the ability to cut off funding as they did with the “Borland Amendment” vis-a-vis support for the Contras in the ’80s … and we all saw how Reagan, Poindexter, North, et al adhered to their oaths to uphold and defend the Constitution in that case.

      But you are right, without a realistic possibility that a President will be both impeached and removed from office for serious Constitutional violations, he or she is effectively a dictator in waiting.

  12. I am getting the feeling today that Russians In Syria are likely to be collaterally kicked around quite a bit. I heard a quote on the fly from Mattis that “hundreds” of Russians were killed in Syria in the month of February alone. I also heard a report today that the number of Iranian fighters with boots on the ground considerably exceeds the number of Syrian soldiers remaining in Assad’s army.

    Also Assad’s remaining helicopters (his most effective remaining air units) are now exclusively based in the Russian air bases in Syria, which means that is where they will be destroyed.

    All this is really going to be a show when it goes down.

  13. Untuk menyediakan proses formal dan seragam di mana Kongres dapat mengeksekusi kekuasaannya berdasarkan Pasal 1, Bagian 8. Dan untuk merebut kembali kekuasaan konstitusional dari kongres untuk menyatakan perang setelah Kamboja dan kunjungan militer lainnya ke timur.

  14. Ini bukan kekuatan kosmetik sepenuhnya jika AS tidak memiliki militer yang siap untuk digunakan pada saat itu juga. Dengan kontrol anggaran militer dan aktual yang minimal dari waktu ke waktu, deklarasi perang akan memberikan otorisasi untuk dukungan keuangan (obligasi perang atau sejenisnya) dan mobilisasi yang sebenarnya.

  15. the longer the world is progressing and not like the old days but why is there such a struggle?

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