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Forget Robert Mueller. Trump’s Attacks On Syria Are a Reminder We’re Already in a Constitutional Crisis

Congress has completely abdicated its constitutional responsibility to authorize war.

Sipa USA/NewscomSipa USA/NewscomAs Donald Trump stumbles through his second year as president, it has become increasingly common to hear warnings about a looming constitutional crisis. Following last week's raid on the office of Trump's personal lawyer, Michael Cohen, which included the seizure of communications with the president, the commander in chief is more agitated than ever, according to various insider reports.

As Special Counsel Robert Mueller's investigation into links between the president's campaign and Russian influence appears to be reaching its peak, Trump has explicitly acknowledged the possibility that he might fire Mueller. Rumors abound that he is about to fire Deputy Attorney General Rod Rosenstein, who oversees Mueller's investigation.

If Trump were to terminate the jobs of either man, the thinking goes, he would be effectively declaring himself above the law, a man unbound and uninhibited by the most sacred rules of the country he is sworn to govern; a constitutional crisis would ensue.

These warnings are worth taking into account. There are legitimate reasons to worry about Trump's state of mind, his governing abilities, and the political bedlam that might erupt if he did take action to block the Mueller investigation. But so far these warnings are just warnings, with the potential to spark constitutional breakdowns that, at least for now, remain little more than imagined scenarios, however plausible they may be.

Meanwhile, a real constitutional crisis has been playing out in slow motion, right in front of our eyes, with far less consternation than has been reserved for Trump's still-hypothetical intervention against Mueller.

That crisis comes in the form of Congress' ongoing abdication of its authority to declare war, and to act as a democratic check on the president's ability to use American military might to strike abroad.

Last week, after several days of teasing, Trump announced that American forces had struck multiple targets in Syria. The attacks came in response to reports that the country's president, had slaughtered his own people in a chemical weapons attack. This was the second such attack of Trump's presidency, and the president and White House officials contradicted each other about whether there might be more.

It seems safe to say, however, that the possibility of further strikes remains, even if Trump himself is wary of military intervention; the president's team is more hawkish than ever, and by striking last week after pushing for—and at one point even announcing—a military exit from the region, Trump demonstrated that he can be swayed. The fighting may persist more in punitive bursts than in sustained conflict, but each attack is an act of war. It is an open-ended military conflict, with all that it entails.

Which means that America is, in a very real sense, engaged in a drawn-out, low-level war in Syria. It is a war that Congress has never authorized, which means that it is a plainly unconstitutional exercise of executive power.

Although the president is the commander in chief of the military, the Constitution reserves the power to declare war solely for Congress. The only exception is in the case of an imminent threat against Americans—essentially, self defense.

There is no plausible way to claim that Trump's attack on Syria was an act of self defense; even the most creative acts of constitutional interpretation will not support it. Indeed, Trump himself has declined to make a self-defense argument. Following the strike, the president released a statement insisting that the attack was constitutional as a way to promote U.S. interests in the region while averting "humanitarian catastrophe." This was all but an open admission that the attack did not pass constitutional muster; Trump was citing a justification that the Constitution does not provide.

Trump's Republican defenders in Congress have provided other cover stories for the strike. Prior to the launch, Speaker of the House Paul Ryan cited the authorization for the use of military force (AUMF) passed shortly after 9/11. That authorization, however, provides for attacks on the perpetrators of the September 11th attack and related parties.

Under the past two administrations, that authorization has been stretched practically beyond recognition to essentially grant the president unlimited latitude to unilaterally strike any perceived terror group operating anywhere across the globe. President Barack Obama, after first considering a unilateral attack against Syria and then backtracking to ask Congress for authorization, eventually justified strikes on terror targets inside the country along these dubious lines, with little congressional pushback.

Obama's strikes were poorly justified; Trump's are not justified at all. His latest attack does not fall within the most expansive understanding of the AUMF. Trump's missiles flew against the governing power of a sovereign nation, not a terror cell operating within it. It was an act of war. It was unconstitutional. And Congress allowed it to happen—again.

Although there are a few outposts of principled opposition to unilateral acts of war carried out from the White House—Sen. Tim Kaine (D–Va.) and Rep. Justin Amash (R–Mich.) come to mind—most of the resistance that has come from Congress has been partisan and pro forma, delivered with a collective sigh and an understanding that no real changes will occur.

As Amash recently noted, in 2013, as Obama was mulling an attack on Assad for using chemical weapons, 119 Republicans and 21 Democrats signed a letter urging executive restraint. In 2018, members of Congress drafted a similar to Trump, but the partisan makeup looked rather different, with 15 Republicans and 73 Democrats signing on board.

There is no sustained and organized effort within Congress to return the power to wage war to the legislature. Most of America's elected lawmakers appear willing to let the president exercise that power alone, especially when that president is a member of their own party. They are content to let the Constitution's clear directives go unheeded, and consequently presidents from both parties have been equally content to amass more power to the office. There now exists a tacit agreement between Congress and the executive branch to allow a foundational element of the constitutional separation of powers to slowly degrade. Under Trump, it has all but disappeared.

Those anxiously worrying about an impending constitutional crisis don't need to wait for the rest of Trump's presidency to play out. It arrived years ago, and there are few signs that it will abate soon.

This slow but steady constitutional dissolution may lack the thriller-esque intrigue of Trump's feud with Mueller, or the convenient partisan drama, but it is real enough, and so are the consequences. These illegal acts of war come with body counts, and they risk expanding into larger and deadlier conflicts across the globe.

And they run the risk of exacerbating whatever chaos might ensue should Mueller be forced out. Each new illegal strike helps degrade the rule of law at home, subtly promoting the notion that essential constitutional requirements are mere formalities. Each time a president drops bombs without the authority to do so, it becomes easier for the public to accept the idea that blatant and ongoing violations of the constitutional are somehow a normal part of national affairs. And this, in turn, desensitizes our nation's leaders to such violations, teaching them that constitutional requirements should be criticized on a partisan basis, if at all, and increases the likelihood that when the next constitutional crisis arrives, it too will be greeted with a shrug.

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  • Hugh Akston||

    If you can't trust a sober, level-headed guy like Donald Trump with cruise missiles and flying killer robots, then who can you trust?

  • OpenBordersLiberal-tarian||

    I trust Hillary Clinton with those awesome responsibilities. That's why I voted for her.

  • Elias Fakaname||

    Sure you did. We believe you.

  • Nardz||

    I mean, there have been times I've mistaken Tony for OBL...
    And few, if any, here are more sincere than Tony.

  • Shirley Knott||

    Certainly not Obama, who declared himself/the presidency above the law wrt targeted execution of anyone anywhere.

  • John||

    Give me a fucking break. We are in no more of a Constitutional Crisis than when Obama bombed Libya and conducted a proxie war in Yemen. I don't recall Suderman talking about a Constitutional Crisis then. And those were both much more significant military actions than this.

    Ultimately, the President does have some inherent war powers. Does that extend to invading and overthrowing governments? No. But I don't think it is unreasonable to think it extends to the odd air strike or punitive expedition, which is all that is going on here. You can disagree with that. You can also think bombing was a bad decision. But to claim it is so out of bounds of Presidential powers that it represents a Constitutional crisis is stupid. I am sorry but it is. If you want to criticize Trump on Syria, do so. But making these sorts of hysterical claims do nothing but make speaker look like an idiot.

  • jcw||

    I don't recall Suderman talking about a Constitutional Crisis then. And those were both much more significant military actions than this

    I don't know if it was Suderman, but Reason has posted extensively on this constitutional topic for years and years.

  • Hackmaschine Mutter||

    The previous administration established the legality of using the UNSC resolution to augment the President's constitutional power to use military force and allow the President to engage in limited military actions, without congressional authorization, for actions such as humanitarian interventions or airstrikes.

  • ||

    So, the previous administration authorized foreign agencies unaccountable to the American voters to grant it extra-Constitutional war-making powers?

    Sounds legit.

  • jcw||

    How little things change:

    We have a president heedless of his duty to uphold the Constitution by keeping the government within its confines, disdainful of international law when it fails to suit his purposes, and contemptuous of a Congress he once controlled when it feels the heat from the American people who have had enough of being lied to and tricked into wars.

    Obama's Incompetent and Unconstitutional Case for War - 9/12/2013 written by Judge Napolitano

  • BYODB||

    That can't be Napolitano, I don't see any questions in that quote at all!

    Just kidding, not much has changed since then.

  • Just Say'n||

    Napolitano is persona non grata at Reason now. But, yes Napolitano has been consistent.

  • John||

    Good for him. But that is not Suderman. And saying the war was illegal and a mistake is not the same as saying it is a Constitutional Crisis. A Constitutional Crisis is something orders of magnatude beyond a mistake or an ordinary misuse of power. You just proved my point. Thanks for looking that up.

  • jcw||

    Okay. No problem.

  • jcw||

    I just searched "Syria Constitution" in Reason by the way if anyone is interested in going to find other related articles (there are a lot of them).

  • Enjoy Every Sandwich||

    I disagree with you as far as the President's powers go. But it is incorrect to call it a crisis; it's more of a longstanding issue, like the Super Elastic Interpretation of the Commerce Clause that the Congress has used for decades.

    The idea is that we don't want just the President by himself getting the country into a full blown war with a country that hasn't attacked us. And the "odd air strike or punitive expedition"--which are acts of war--could certainly do that. If another country hit us with "the odd air strike" we would sure as hell call that war.

  • John||

    I think you can reasonably disagree about the extent of Presidential powers. And you certainly can reasonably disagree about this action. Suderman by calling it a crisis, just makes himself look stupid. If he doesn't like this, he needs to explain why and not engage in hyperbole.

    I think the analogy to the commerce clause is a very good one. It is a long-standing and for many problematic view of the Constitution.

  • Headache||

    Suderman by calling it a crisis, just makes himself look stupid

    Let me correct - Suderman just makes himself look stupid whenever he puts fingers to keyboard.

  • Enjoy Every Sandwich||

    I meant to add, it would only be a Constitutional Crisis per se if the Congress tried to take back its power and the President resisted. The Congress will never do that. So this is naught but an academic discussion. Unfortunately.

  • ||

    it would only be a Constitutional Crisis per se if the Congress tried to take back its power and the President resisted.

    ^ This.

  • BestUsedCarSales||

    I've been hearing the phrase lately, and I think it's just the two hard "k" sounds pleasing to the ear.

  • texexpatriate||

    Wrong! We've been in a constitutional crisis for 150 years!

  • Teddy Pump||

    U r 100% correct.....What the hell have we been doing there all this time but fighting a war?...Now, I believe that war-like intervention has been Unconstitutional, but to get in a huff now that Trump orders a strike in this war is ludicrous!!!...Trump ordering a strike in Syria is the only legitimate thing in the whole immoral & illegal fiasco!!!

  • Headache||

    ^This^

  • Jerryskids||

    It is a war that Congress has never authorized, which means that it is a plainly unconstitutional exercise of executive power.

    It might be plainly unconstitutional to some of us, but I'd suggest that the Supremes would see it otherwise - Congress can simply withhold any funding for the not-war if they don't approve of it, by providing funds for the not-war Congress is tacitly approving of the war. In other words, the declaration of war thing is an opt-out rather than an opt-in. Isn't that more or less what they said in response to the Tonkin Gulf Resolution? Congress hadn't explicitly declared war, but by providing funds for the sight-seeing tour for the US Army in Vietnam, they were implicitly declaring war.

  • BYODB||

    Yep, Trump is incredibly shitty in much the same ways as the prior administration. The major difference? People swooned more for Obama so his missiles fired into weddings were just a lot more ignorable.


    Of course, all of this pretends that Trump's approval rating doesn't soar when he shoots missiles. That makes one wonder how much the 'average' American really dislikes military adventurism. If the last decade has taught me anything, it's that the anti-war sentiments in the United States are effectively dead and gone and only the bones remain.


    Congress didn't 'abdicate' their authority in the technical sense, they gave a rubber stamp of approval to the executive doing more or less whatever the fuck they want. It's still shitty, but let us not pretend that they did it this way because they approve of those wars they just don't want their war boners to put their reelection at risk. To be honest, I don't get why since it's pretty clear from Trump that they'd probably be reelected in a landslide if they just fired off more cruise missiles.

  • Kivlor||

    Of course, all of this pretends that Trump's approval rating doesn't soar when he shoots missiles. That makes one wonder how much the 'average' American really dislikes military adventurism. If the last decade has taught me anything, it's that the anti-war sentiments in the United States are effectively dead and gone and only the bones remain.

    I'm going to offer a different outlook on this, take it for what you will: Many people like myself who are vehemently opposed to intervention in Syria still have a generally favorable opinion of Trump. A good portion of his supporters are going to stick by him, even if they disapprove of this move. Partly because he's done many good things, partly because they hope he will do other good things.

    Additionally a lot of the war-hawks were really opposed to Trump, and IMO formed a sizable portion of the "Never Trump" bunch that would have supported a different Republican nominee. Those people are more likely to shift their opinion on Trump over things like recognizing Jerusalem as Israel's capital and launching an attack against Syria.

    That's my thought on the higher approval ratings...

  • BYODB||

    There's room for both in America, but ultimately this type of foreign policy is popular (obviously in my opinion) because most Americans seem to like the appearance of doing something against terrorism even when it's completely ineffective theatre. Perhaps especially when it's completely ineffective theatre.

    It's the only way I can explain the continued existence of the TSA. If it was truly unpopular, it wouldn't exist.

  • TrickyVic (old school)||

    The TSA can feel up kids, treat the disabled poorly, and somehow not become unpopular.

  • BYODB||

    It's because there's a consensus view among idiots, who are the majority, that they 'keep us safe' even while they fail every test put to them to see if they're finding things, or if things just aren't happening.

    Apparently terrorism is so rare that, even without the TSA, our planes would be perfectly safe. That idiots ascribe this to our having 'done something' is just proof of widespread idiocy. Or, as I've seen some people claim, some sort of deterrence. As if you can deter lunatics intent on suicide.

  • Delius||

    Apparently terrorism is so rare that, even without the TSA, our planes would be perfectly safe.

    "Why do you have those carrots in your ears?"
    "To keep away the elephants."
    "But there aren't any elephants around here!"
    "See? It's working."

  • ||

    Apparently terrorism is so rare that, even without the TSA, our planes would be perfectly safe.

    It's proven, even.

  • ||

    Don't know where that link went, but google "TSA fail rate." There's been a drastic improvement, such that it's dropped to only 80%.

  • John||

    Trump is engaging in what amounts to a punitive expedition here. I think there is a reasonable position in between "never intervene" and "must be the world's policeman in the name of collective security and right every wrong." What Trump is doing here is telling Assad and the world that if you use WMDs, you are going to pay a price for it. What he is not doing is claiming it is our duty to remake Syria in our own image or that the world has some moral burden to wage war to stop Assad starving and killing his own people. He is saying that while we can't right every wrong, there are some lines that can't be crossed without consequences and using poison gas is one of them.

    I do not think that is an unreasonable position. I would say that even if you disagree with it, it is a much better position than Bush's position of "we must bring democracy to the world or Obama's view that any enemy can be dealt with if we just placate them enough.

  • Kivlor||

    Problem here is that there's no evidence yet that Assad gassed those people, and there's plenty of reason to suspect the Jihadis who were leaving the area did it. Heck, Assad and the Russians opened the door for an investigation into the whole ordeal, and the day the team landed Trump started launching missile strikes...

  • John||

    That is a different issue. If he has the wrong guy, then this is a mistake.

  • BYODB||


    Problem here is that there's no evidence yet that Assad gassed those people


    I'm under no illusions that we'll ever see 'real' evidence either way considering American journalists are too focused on sensationalism and click-bait to do any difficult investigatory journalism of any particular note. Meanwhile the government is reflexively secretive, even when it doesn't behoove them to be that way.

  • ||

    Helicopter leaves Syrian base, flies over Douma; gas attack; helicopter returns to Syrian base.

    Yup - probably false flag.

  • Freelancelot||

    Yes, John. You're a thinking man.

  • Just Say'n||

    Suderman thinks the Cohen investigation has to do with Russia?

  • Freelancelot||

    Oh, here goes "Reason" again, acting like another mouthpiece rag for the Democrats. No, the President didn't do anything "Unconstitutional". Idiots.

  • AD-RtR/OS!||

    Congress abdicated that responsibility 65-years ago.

  • texexpatriate||

    Stumbles though his second year? Lordy! But regarding the headline . . . "already in a constitutional crisis." The fact is the U.S.A. has been in a constitutional crisis ever since Abe Lincoln launched his war against another American nation of former states for the purpose of recovering the nearly 75 percent of revenues that came from those former states in the form of punitive taxes and tariffs. Then when the GOP in 1868 enacted through chicanery a 14th Amendment that the states would not ratify for many reasons---but one of which was it transferred state sovereignty over the national government to the national government over states---many in the GOP celebrated by singing and chanting, "The Constitution is Dead, The Constitution is Dead," over and over again. Citizens of the U.S.A. have lived under federal tyranny and been in a constitutional crisis ever since.

  • retiredfire||

    A thousand ^ for this.
    The 14th Amendment is invalid for the following reasons: It was never ratified by three-fourth of all the States in the Union according to Article 5 of the U.S. Constitution. Out of 37 States, 16 had rejected it. Many of the States who were counted as ratifying it, were compelled to do so under duress of military occupation. Any legal act entered into under force duress, and coercion is automatically null and void. The fact that 23 Senators had been unlawfully excluded from the U.S. Senate, shows that the Joint Resolution proposing the Amendment was not submitted to or adopted by a constitutional Congress.

  • zombietimeshare||

    "That crisis comes in the form of Congress' ongoing abdication of its authority to declare war, and to act as a democratic check on the president's ability to use American military might to strike abroad."

    Accepting responsibility would would make Congress responsible for the results. That will never happen. Members of Congress prefer to wring their hands and pontificate from the sidelines—safe from political damage.

    Beyond that, speaking of wringing their hands and pontificating from the sidelines, what a BS article.

  • Headache||

    Pope Nicholas blessed Saint Peter's pontification.

  • Crazy mick||

    Just another reminder that both parties will ignore the Constitution when it suits them. Also that Republicans take a libertarian stand on 1.5 issues: guns and taxes (with no cuts in spending). How's the lesser of two evils working out?

  • Mark22||

    Congress has completely abdicated its constitutional responsibility to authorize war.

    This is news somehow?

  • pemaintoto||

    terima kasih telah bebagi artikel

  • pemaintoto||

    Pemerintahan sebelumnya menetapkan legalitas menggunakan resolusi DK PBB untuk menambah kekuasaan konstitusional Presiden untuk menggunakan kekuatan militer dan memungkinkan Presiden untuk terlibat dalam tindakan militer terbatas, tanpa otorisasi kongres, untuk tindakan seperti intervensi kemanusiaan atau serangan udara.

  • Brett Bellmore||

    IT may be a constitutional problem, but it's been going on for enough decades that it can't be a constitutional "crisis".

  • prediksi hongkong||

    Pemerintahan sebelumnya menetapkan legalitas menggunakan resolusi DK PBB untuk menambah kekuasaan konstitusional Presiden untuk menggunakan kekuatan militer dan memungkinkan Presiden untuk terlibat dalam tindakan militer terbatas, tanpa otorisasi kongres, untuk tindakan seperti intervensi kemanusiaan atau serangan udara.

  • Last of the Shitlords||

    True, but many believe that this would and should not survive a constitutional challenge at the SCOTUS.

  • retiredfire||

    Didn't read past the sub-head.
    Someone needs to remind fuckbrain that the Constitution doesn't say "authorize" war.
    It says "declare" war, a completely administrative function.
    Congress declares war, or it doesn't, but the president orders troops into action, whether the declaration has happened, or not.
    Even if Congress declares war, the president can refuse to order troops into action and the Congress can do nothing about it.

  • prediksi hk||

    I do not understand why he hates them so much

  • prediksi hk||

    bocoran togel sgp

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