War Powers Act

The Constitution and Biden's Syria Air Strike

The strike was probably legal (as were similar small-scale strikes by Trump). But there are serious constitutional problems with the overall US military presence in Syria.

|

F-15 fighter, similar to the ones used in the recent air strike in Syria.

 

Last week, President Biden ordered an air strike on Iranian-supported militia groups in Syria. His actions understandably rekindled debates about the legality of US military activity in that country. Indeed, Donald Trump ordered very similar strikes in Syria (albeit targeting Assad regime facilities associated with chemical weapons) in both 2017 and 2018. Critics have argued that Biden's air strikes —and Trump's—were illegal because never specifically authorized by Congress. In my view, that isn't true. But the overall legality of the US military presence in Syria is highly questionable at best, and does require congressional authorization. Obama, Trump, and now Biden all deserve blame for failing to secure it, or even seriously try to do so.

My position on the legality of Biden's air strike is much the same as what I said about Trump's Syria strikes in 2017 and 2018: large-scale attacks (like the one Barack Obama launched against Libya in 2011) require congressional authorization, but very small ones that don't rise to the level of a "war" generally do not. The boundary between the two can be a fuzzy one. But both the Trump and Biden air strikes—due to their extremely limited scope and duration—are well short of the line. Obviously, some leading scholars  disagree, and believe that almost any initiation of force against a foreign power requires congressional authorization. If they are right, Trump's two air strikes against Syria were unconstitutional, and Biden's may well be so, as well.

But Biden can also make additional argument that his strike was a direct response to recent attacks on US forces by the pro-Iranian militia groups the strike was directed against. Advance congressional authorization is not needed for actions taken in self-defense in direct response to an attack by the same party the strikes are launched against.

The issue of whether Biden's actions (like Trump's before him) was a good idea is a more complicated question. The Trump strikes did little to deter Assad from committing horrific atrocities, though perhaps he has since done them largely with conventional weapons rather than chemical ones. Whether Biden's deters Iran and its allies from continuing to attack US forces remains to be seen.

But even if the recent air strike is legal, the overall US military presence in Syria is not. The still-ongoing US intervention against ISIS—the main original goal of our military presence in that country—is clearly large enough to qualify as a war, and thus requires congressional authorization, just like the Libya War did. But ever since that effort began under the Obama administration in 2014, successive presidents have alternately ignored the constitutional problem or offered specious rationales claiming that congressional authorization already existed (e.g.—under the 2001 Authorization for the Use of Military Force targeting the perpetrators of the 9/11 attack, or the 2002 AUMF against Saddam Hussein's regime in Iraq), even though it pretty obviously doesn't. In addition to violating the Constitution, the Syria intervention also runs afoul of the 1973 War Powers Act, which requires the president to get congressional authorization for any deployment of military forces in "hostilities" abroad within 90 days of the start of the deployment. It is blatantly obvious that the US  intervention in Syria involves the kind of "hostilities" covered by the Act, and that the War Powers Act deadline passed a long time ago (back in 2014). I have been highly critical of this state of affairs from the beginning, and most of what I said about it back in 2014 and 2015 still applies today.

As I have repeatedly emphasized, the constitutional requirement of congressional authorization for large-scale offensive military action isn't just a technicality:

It also 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 is required to get 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, as opposed to bailing out as soon as difficulties arise. If such a consensus is absent, it is likely best to forego entering a conflict to begin with.

As James Madison put it, "[t]he constitution supposes, what the History of all Gove[rmen]ts demonstrates, that the Ex[ecutive] is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl[ature]." Even Alexander Hamilton, the leading advocate of expansive presidential power among the Founders, wrote that only "the Legislature have a right to make war" and that "it is . . . the duty of the Executive to preserve Peace till war is declared." In addition to the originalist case for the requirement of congressional authorization, there are also strong living-constitution considerations supporting it.

I am not as dovish as many libertarians, and I believe there was good reason to take military action against ISIS, and perhaps even also against the Assad regime and various Iranian proxies in Syria. But, for both legal and pragmatic reasons, it is important to ensure all large-scale military actions secure congressional intervention.

The new president has inherited this problem from his predecessors. But, like it or not, he now owns it, and has a duty to secure congressional authorization for any ongoing military action in the region. So far, however, both he and Congress have shown little interest in addressing this problem. In the case of Congress, that is a continuation of a long-standing pattern that has now lasted for almost seven years, since the Syria intervention began. I hope that changes. But, at this point, I am far from optimistic.

On the plus side, the Biden administration does deserve credit for ending US support for Saudi-led offensive military action in the ongoing Yemen war. While that effort probably did not violate the Constitution, it did run afoul of the War Powers Act. In addition, the Yemen War has been a horrific humanitarian catastrophe, one from which the US has derived little if any strategic gain—certainly none that can even begin to justify the awful effects of the conflict.

NEXT: Knee Defenders and Virtual Laps—Part 1

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I’m fascinated by the idea that there is a category of dropping bombs from aeroplanes that don’t rise to the level of a “war”, because they’re basically just foreign policy. I wonder whether that also works if the bombs fall on downtown New York…

    1. “bombs fall on downtown New York”

      The strong do what they will, the weak suffer what they must.

      Its a concept that the Dutch know well:

      “A four and a half-year struggle followed as the Dutch tried to re-establish their colony; although Dutch forces re-occupied most of Indonesia’s territory a guerrilla struggle ensued, and the majority of Indonesians, and ultimately international opinion, favoured Indonesian independence. The Netherlands committed war crimes : summary and arbitrary killings of Indonesian villagers and farmers, torture of Indonesian prisoners and execution of prisoners.”

      1. Yes, and then the Americans told them to knock it off. (Not because of any concern for the Indonesians, mind you.)

        The only difference is that in the Netherlands we have rule of law and accountability for war criminals. (At least we do today.) So lots of cases related to the 1945-49 decolonisation war are making their way through the courts at the moment.

        https://www.theguardian.com/world/2019/oct/01/relatives-of-dutch-colonial-victims-in-indonesia-to-get-day-in-court

        But yes, kudos for knowing your classics. It neatly sums up the reason why Biden has gotten a less than heatwarming welcome in Europe since taking office. Four years of Trump has convinced people of the importance of “strategic autonomy”.

        1. “lots of cases related to the 1945-49 decolonisation war are making their way through the courts at the moment”

          Congrats. Its only 70 years later!

          And so expensive too!

          “they can claim a reimbursement of the costs of their living.

          In a sixth case, involving a man tortured by Dutch forces during Indonesia’s struggle for independence after the second world war, compensation for his ordeal was awarded. The victim, who was beaten and had a cigarette stubbed out on his head, was granted €5,000 by the court.”

          Cost of living expenses and €5,000 too! How will the Dutch government handle that huge expense.

      2. “The strong do what they will, the weak suffer what they must.”

        That tune will change when Ohio’s downscale, rural residents meet the consequences of their conduct.

        1. I look forward to seeing you marching in lock step with your pussy hat uniforms wielding dildos for weaponry.

          We won’t even need guns. Once you start crying because everyone is laughing at you, the war will be won.

          And then you can ride your dildo back to the high horse from whence you came.

    2. I also find Somin’s definition of “war” to be offensively arbitrary. “War” is any violent act committed at the direction of the government against a foreign government or the citizens or properties thereof. A single bomb or cannon shot is still an act of war. There is no free pass for “small” wars or ‘police actions’.

      Any such act committed offensively is supposed to require Congressional authorization. Even defensive acts of violence are supposed to require Congressional authorization, though there are practical reasons why that authorization may have to be retroactive.

      1. I’m hardly a hawk, and am all for Congress putting some heat on Biden to justify himseld.

        But the thing is, we have contemporaneous, founder-era examples of military action being taken without Congressional authorization (Barbary Pirates).
        And there are good policy reasons to leave at least some military actions in the hands of the swifter, single-person Presidency than the more deliberative Congress.

        But neither are CiC powers plenary, as too many Presidents declare.

        Whether the WPR draws a proper balance is another question.

        1. You mean those same founders who gave us the Alien & Sedition Acts? O, then it must be OK.

          1. And that’s why I’m not an originalist.

            But even by the text of the Constitution, they gave military powers to both Congress and the President, so the idea that Congress has plenary power over military action doesn’t seem correct to me.

            1. The point is, the Congress has to okay it before the POTUS initiates military aggression against another country.

              Once the okay is given, the POTUS conducts the war until there is a victory or the Congress cuts off funds.

              POTUS Biden inherited Syria (to be fair), although I find it ironic his old boss is the one who initially entered Syria.

              1. Congress gives permission for all military action is not the current state of our law, nor has it ever been, including in the Founders’ era.

                I agree that’s the most natural reading of the Constitutional text, but it’s not the only interpretation of Commander in Chief powers.

                Beyond textual ambiguity and past precedent, I also plead necessity – you sometimes need to act fast on military matters, and Congress is not constituted to have that agility.

                But this is why I like the War Powers Resolution. OK, the President needed to act quickly. You tell Congress, and then you have 60 days.
                After that, no more authority – so you’d better make your case!

                Were I President, I’d pass an EO binding myself to that standard.

                1. “I’d pass an EO binding myself”

                  Why do libs value useless gestures?

                  “I can’t do this because I promised in writing not to” is not even worth the paper its written on.

                  1. So you have no idea how the modern presidency works, but don’t let that stop you!

                    1. Umm… he is right. The EO has no authority or binding as the lresidents actions would undo the EO when acted upon. EOs are not law but a discussion of interpretation.

                2. Perhaps then, as a country, we need to step back = I agree that’s the most natural reading of the Constitutional text

                  One thing I have appreciated in the past. It used to be that a POTUS would actually make a case to the Congress, and the Congress would vote on it. I mean, it was not so long ago. I would like to see a return to that standard.

                  Sarcastr0, I remember Senator Biden vigorously debating way back in 1991, the question of whether we would forcibly remove Saddam from Kuwait. His words then about the nature of Congressional and Presidential authority wrt war-making are words I hope POTUS Biden recalls today.

                  If we just ‘upped and left’ Syria, do we really give a crap? I mean, can anyone tell me the vital US national interest in Syria? I do not see one; I never did. I only wish POTUS Trump had been able to cut deals to keep the Turks and Syrians off the Kurds collective backs. There is nothing in Syria but sand and death. Even the Arabs do not trust the Syrians. They even have a saying about it.

                  Would the world weep if the Syrians destroyed themselves? No Sarcastr0, they would not. The world would say ‘tut, tut” and move on. I hope POTUS Biden and his team get us out of Syria – totally.

                3. “You tell Congress, and then you have 60 days.”

                  I agree. Or perhaps that is even too generous. My sense is that it has a lot of parallels with the recent discussion of emergency powers of governors or mayors – they have them so they can react on a time frame shorter than the legislature can be assembled.

                  So – there is a revolution in Elbonia, and the president sends in the marines on a 24 hour operation to evacuate citizens and the embassy staff, sure, you just can’t get congress to act on that time scale.

                  You have a long-considered plan for a 59 day campaign to change the government of Elbonia – get congress to sign off first. And formally, no ambiguous Gulf of Tonkin resolutions.

                  There are still gray areas where I’m not sure how I feel, e.g. some years ago the Navy observed a couple of Iranian boats laying mines in international waters in the Gulf, and we promptly sank them. Not sure how to best handle that kind of exigency.

            2. I AM an originalist, but originalists understand that the founders safeguarding against an abuse generally meant that they thought it was likely. So it actually happening doesn’t imply “not really an abuse”.

              1. Brett,

                Can you clarify what kind of originalist you are?

                Original Intent
                Original Meaning
                Original Public Meaning
                Semantic Originalism
                Framework Originalism
                Textualism
                Structuralism

                You know, so we’re all clear.

                1. Original public meaning. There are no secret messages in the Constitution, it means what it would have been interpreted to mean at adoption.

                  1. Interpreted by whom? Since there was immediate disagreement over what certain parts meant, I suppose this method of interpretation leaves one free to choose the meaning that most fits the desired result. Very convenient.

      2. “A single bomb or cannon shot is still an act of war.”

        An act of war is not “war”. War means some sort of sustained violent effort.

        “Any such act committed offensively is supposed to require Congressional authorization. ”

        The Constitution says no such thing. You are inferring it from the “declare” provision.

        In any event, Congress has authorized our Sryain adventures by appropriations.

        1. Oh, come on: Only Congress is given the power to declare war. Saying that the President didn’t “declare” war, he just waged it, is just a dodge.

          1. War means something more than a couple of bombs on vacant facilities.

            How many times did Congress declare war on the Sioux or the Apache? Did Congress declare war before Pershing invaded Mexico to catch Villa? Granada? Panama?

            We have used armed force many times on the president’s say so.

            1. Weren’t you an originalist just the other day? What does it matter what dozens of presidents have done?

              1. I have never been an originalist. I am a textualist.

                No text in the Constitution says that exclusive offensive military power is granted to Congress alone. Opponents of presidential power rely to much on the “declare” power.

                Since the text is not clear, practice can be looked at.

                1. Whereas you’re rendering it pretty much moot. Congress has the sole power to declare war, but Presidents can wage war regardless of whether it’s been declared? Then what’s the point of reserving the declaring to Congress?

                  1. They get around that inconvenient fact by redefining the word “war,” exactly as Prof. Somin has done here.

            2. Did Congress declare war before Pershing invaded Mexico to catch Villa? Bob…The answer is yes. Congress did in fact authorize the invasion of Mexico (twice). Wilson had his authorization.

              Concur on this point: We have used armed force many times on the president’s say so.

            3. Panama declared war on the US.

        2. Unless I’m reading the War Powers Act incorrectly, what is “hostile” and thus requires congressional authorization or declaration (excepting the unilateral window for POTUS when our forces are attacked) defines hostility in section 1543(a) as our forces being introduced “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.”

          If just having an armed aircraft enter another nation’s airspace requires congressional approval, it would seem any kinetic military action no matter how small requires congressional approval/declaration.

      3. Agreed. Bombing is a classic act of war, and if it was in response to attacks on our own troops, well, our own troops were on the sovereign territory of another state contrary to its will, also a classic act of war.

        Anyway you look at it, this was waging war without a Congressional declaration of war.

        Sure, that’s something we damnably do all the time, but that doesn’t make it constitutional, it just makes it a relatively common constitutional violation.

        1. I’m with Brett here.

        2. Congress has both the power to declare war, and the power to make all laws necessary and proper for bringing into execution any power vested in the federal government. They did that with the War Powers Resolution and explicitly stated how their power to declare war would be execution. In that resolution, Congress states war must be authorized or declared, with a limited time window for unilateral POTUS action in case our forces are attacked. What triggers the need for their authorization/declaration? According to the resolution, even our forces being armed and in a foreign nation’s airspace, territory, or waters (uninvited) requires congressional authorization/approval. So simply flying a single armed aircraft in a foreign nation’s airspace requires congressional approval.

  2. The word, “legality” is a denial of “reality.” The enforcement of law is a procedure on the body. To think people should obey a law, with that procedure is denial of reality. Lawyer advice and judgment about legality have been catastrophic. They are dismissed.

  3. Prof. Somin, I generally agree with your position but also wonder why you let Congress off the hook.

    They’re fully complicit in abrogating their constitution authority.

    They could easily block all types of military activity.

    Some congresscritters even wanted to block re-naming bases.

    1. They are not just complicit, they are enablers.

    2. It’s virtually impossible for Congress to act in unity as a single body.
      Further, money is fungible, and the president is the commander is chief, thus reallocation is simple except for big things that require excess funds. Also, once funds are allocated for a budget year, it’s the presidents for the rest of the budget year (or term of the continuing resolution).

      1. That’s not how appropriations work. If you don’t believe me, look at what happened to Trump and his border wall.

      2. Reallocation by the President is not allowed except as laid out in the appropriation bills themselves, or as otherwise provided by statute.

  4. “Obama, Trump, and now Biden all deserve blame for failing to secure it, or even seriously try to do so.”
    None had any interest is seeking a limit on their power to kill alleged enemies.

  5. Small attacks not in direct defense of an attack are essentially extra judicial killings without congressional authorization. That’s legal?! It sounds a like murder to me.

  6. Bias. How does it work?

    Trump: Might be unconstitutional!
    Biden: Probably Constitutional!

  7. There is nothing Presidential (or Constitutional) about taking aggressive military action without a Declaration of War from Congress.

    The entire reason that the Executive wasn’t given the power to Declare War, was so that one person couldn’t enter America into armed conflict absent the approval of voters through their Representatives and Senators.

    Drop one bomb on the wrong person and bring the US into war, and you’ve just illegally circumvented the sole purpose of that Constitutional provision.

    This includes Obama and his bullshit “it’s not a war because they can’t fight back,” Trump, and now Biden as well.

    Don’t even get me started on the illegality of the War Powers Act. Congress cannot delegate its Constitutional authority to another branch of Government absent an Amendment. Neither is it permissible for one Congress to pass a law restricting the exercise of Constitutional authority by future Congresses.

    1. Well, technically, we weren’t supposed to have a standing army, which the USAF is part of. We were supposed to have a standing navy, but “raise” armies — when wars were declared.

      They also didn’t anticipate “stars falling from the sky” i.e MIRVed ICBMs. (Although the Book of Revelations did…)

      1. I wonder if they’re still bothering to limit army appropriations to two years, or they’ve given up on that nod to the Constitution? I haven’t checked lately.

        Nope, looked it up, they’re routinely violating it.

  8. Great, the War Powers Act has been violated. Who exactly has standing to sue here? Congress? The president can just as easily say, I’m the commander in chief this act can’t restrict that power so there.

    Unless it is an unconstitutional war, which is a fair argument but even then lack of standing plus you cant exactly enjoin the military from continuing a war after you bombed someone. But relying on statutory constraints is really dicey, because there was a lot of debate at the founding whether you can statutory restrict military power (the preponderance of evidence imo says congress can, but both sides have good arguments.)

    1. Also see Oetjen v. Central Leather Co. and political questions doctrine in general with respect to foreign relations. If the War Powers Act is unenforceable, even if it isn’t unconstitutional per se we can act as though it is.

  9. I’m not sure that little/big is a good sole litmus for these things. I would hope that the Congress would ask for a quick word before taking the decision to put a small landmine in a public square of a world capital (whether Red or Trafalgar). Notably, the notification for this one excluded the AUMF, cited the failed-state basis under international law, and at least asserted a claim of direct protection of American citizens. (Historically the best defense for Presidential unilateral action.)

    Related: How many of these do I need to write to bump my VAP app at MasonScalia to the top of the pile?

    Mr. D.

    1. It’s always fascinating to see how the US has an entirely different version of international law than everybody else…

      1. The strong do what they will…

        1. Except we don’t. We can, but we don’t.

          Why we wouldn’t want to be the kind of swinging bully you seem to admire is easy to figure out at a moments’ thought.

          1. S0,
            Please explain the actions in Llibya that aimed (successfully) to topple the Qaddafi regime and replace it with… ooops… a failed state and haven for terrorists.
            That was bullying writ large. And Obama is still unapologetic for his decision, even though it was a fiasco.

            1. I’m still not sure that it was. Both Iraq and Libya turned a tyrannical dictatorship into an anarchical mess/civil war, with lots of people getting killed in the process. But what I think that might amount to is that a situation where the people were oppressed has been turned into a situation where they have a measure of self-determination, even if they have to fight for it. “Fighting for it” was never an option before.

              I certainly wouldn’t use a word like “bullying” to describe the overthrow of a brutal dictator. Illegal (as contrary to art. 2(4) of the UN Charter), sure. But bullying?

            2. I’m not defending Libya – in fact you can see me on this blog including that in the list of the bad things Obama did.

              Apart from his ignoring the WPR, it was pride to think we can mess with the ME and predict the outcome.
              I’d like us to get out of the ME, and *especially* stop funding Saudi Arabia.

              1. Euh, I don’t think the US “funds” Saudi-Arabia. Quite the contrary, they fund the US weapons industry. The US arms Saudi-Arabia and funds Israel. (Either one of which you might oppose, as I do.)

  10. But those bombings may kill potential immigrants to the U.S., so Prof. Somin should be against them.

    1. No, war destabilizes the region, creates more refugees, and therefore provides a pretext for more people to come to the US outside of the visa process. Prof. Somin supports war to create more kebab vendors on US streets.

  11. I will worry about Biden following the constitution on war declaration right after the state of the union is delivered to congress.
    The US Constitution is not even treated as a guideline by the fascists.

    And by the way, the last “war” was also the last one we put a number to. Hasn’t been a war since.
    Just police actions, training assistance, and foreign soil training exercises with live ammunition. If congress didn’t declare it a war, then it isn’t a war.

    1. Well, technically it’s not required to be annual, that’s just a tradition. The Constitution says “from time to time”.

      Still, the failure suggests that, whatever they were doing to bring him to full alertness for the space of a few debates, it wasn’t sustainable. I’m increasingly dubious he’ll even make it to the half-way point so that Harris has a chance of having two full terms of her own.

      1. Take your meds.

        1. OK, your explanation for why he can’t be bothered, then.

          1. Security. https://thehill.com/homenews/house/540522-acting-capitol-police-chief-cites-biden-speech-threat-for-keeping-security

            You are pointing to some kind of neuroscience magic we don’t have in order to keep calling Biden decrepit. And think that’s more likely than concerns over violent right-wing extremists.

            1. Both of the violent right wing extremists have been arrested already.

              1. Well, that’s all of them taken care of then.

            2. And you’re positing that a few thousand troops can’t keep the President safe on a 3 mile drive. That’s crazy talk.

              1. The President isn’t the only person at the SOTU

    2. I do not think a new president has ever delivered a “state of the union” speech in the first month.

      They often make first month joint sessoin speeches but those are not considered “state of the union”.

      1. The tradition is to call the first one an “Address to a Joint Session of Congress”, rather than a “State of the Union Address”. I suppose because the incoming President is considered to be underinformed at that point.

        Trump did his on Feb. 28th. Obama on Feb. 24th. Bush the younger, Feb. 27th. Clinton, Feb. 17th. Bush the Elder Feb. 9th.

        Last President to blow it off was Carter. Before him Ford didn’t give one, but, hey, he wasn’t President in February, now, was he? He just went straight to the usually scheduled SOTU addresses. Nixon delayed his a year, but do we really take Nixon as a good precedent?

        No way around it, it IS unusual.

        1. For a majority of our history the state of the union was sent by letter. I’d love to see a return to that tradition.

          1. I’d be fine with that, too, but he hasn’t done that, either.

          2. Actually you can fit the phrase “All fucked up” on a postcard.

  12. In Germany killing Jews was legal.

  13. Meet the new boss. Same as the old.

    Lots of things to disagree about. Bombing the middle east ain’t one of ’em.

    1. Unless you actually care about the Constitution.

      Which other parts of America do you hate?

  14. The Constitution gives Congress the power to declare war. But it also says that the President is Commander in Chief of the armed forces. The Commander in Chief clause gives the President the power to order immediate retaliation for a hostile act before seeking Congressional approval or a declaration of war, if the President in his capacity as Commander in Chief believes such action is militarily appropriate. That’s what Biden did here. But the War Powers Act and the provision giving Congress the power to declare war require the President to seek Congressional approval promptly thereafter if there are continued hostilities. That all makes sense, more or less, but it isn’t always how it actually works.

  15. By the way, if we’re going to get precise about all of this, the Constitution grants Congress a lot more powers than just the power to declare war:

    – To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
    – To raise and support Armies, (…);
    – To provide and maintain a Navy;
    – To make Rules for the Government and Regulation of the land and naval Forces;
    – To provide for calling forth the Militia to execute the Laws of the Union, (…);
    – To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

    Congress makes laws, the Executive branch executes them. That’s the default model, and I wouldn’t deviate from it absent strong indication to the contrary. (Eg. regulating the pardon power seems tricky, because the whole point of the pardon power is that it’s supposed to be used to make exceptions in individual cases.)

    Of course, if Congress wants to give the President a plenary authorisation to drop bombs on foreign countries subject to X, Y, and Z safeguards, that may or may not be constitutional, but at least it would fit the proper model.

    1. “Eg. regulating the pardon power seems tricky, because the whole point of the pardon power is that it’s supposed to be used to make exceptions in individual cases.”

      That, and the fact that it’s a power reserved to a different branch of government. With no slightest suggestion in the Constitution that Congress has anything to do with it.

      1. If we grant Congress the power to create Federal crimes and decide how they should be punished, I don’t see why that would not in principle include the power to define the scope of the President’s pardon power as well.

  16. I believe the War Powers Resolution uses Congress’ Article 1 power to make all laws necessary and proper to detail what military action requires Congressional authorization or a Declaration of War (with the ninety day unilateral POTUS provision when our troops are attacked) and it in, if I recall correctly, it defines even flying an armed military aircraft in another country’s airspace (without permission) to trigger the requirement for congressional approval. So I’m not sure it’s a matter of “small” vs “large” military actions when it comes to needing congressional approval. Nothing is quite as small as putting armament on an aircraft and flying into their airspace.

Please to post comments