In this commentary, Robert F. Turner from the University of Virginia School of Law says President Obama clearly has the constitutional power to launch missile strikes at Syria without congressional approval. But in historical terms, consensus and policy issues are important considerations.
Bashar Assad. Wikicommons: Fabio Rodrigues Pozzebom
The reported use of chemical weapons in Syria has placed President Obama in a quandary. Based upon press reports, neither faction in the current conflict is likely to further democracy, human freedom, or other core American values; but the President, by declaring that using chemical munitions would cross a “red line,” has placed his own credibility—and that of the nation—on the line. If he refuses to act, future threats by American presidents to deter misconduct may ring hollow.
The White House has made it clear that there will be no American “boots on the ground” in Syria and that the United States doesn’t seek “regime change,” and most speculation seems focused upon a limited number of sea-launched cruise missile strikes at military targets in Syria.
But any use of U.S. military force is likely to be controversial, and there is at least some risk that a “limited” military strike will provoke responses from Syria, Iran, or perhaps one of their terrorist proxies that will escalate the situation.
As a policy matter, the idea of hitting someone “soft” and then hoping that will suffice doesn’t excite me, and I would personally favor exhausting efforts to put together a major coalition before direct U.S. military intervention is authorized.
But, as a matter of constitutional law, much of the criticism is misguided. The President clearly has the power to do this without first getting a formal Declaration of War from Congress or complying with the terms of the 1973 War Powers Resolution. While, for prudential reasons, it might be wise to get Congress on board, the Constitution doesn’t even require the President to “consult” with Congress.
War Powers and the Founding Fathers
On August 17, 1787, James Madison moved in the Constitutional Convention in Philadelphia to strike the term “make war” and give Congress instead the far narrower power “to declare War.” The motion carried with but a single negative vote. “Declare War” was a term of art from the Law of Nations, and was only viewed as necessary when a country was about to launch an all-out “perfect” aggressive war. Defensive war and “force short of war” were not constrained.
As Hugo Grotius—often referred to as the “father” of modern international law—observed in his 1620 treatise, De Jure Belli ac Pacis, no declaration of war was necessary when a State was “repelling an invasion, or seeking to punish the actual author of some crime.”
In his first Pacificus essay in 1793, Alexander Hamilton observed that “the power of the Legislature to declare war” was an “exception” to the general “executive power” vested in the President by Article II, Section 1, and thus was to be “construed strictly.” This was the interpretation of that clause embraced earlier by James Madison, Thomas Jefferson, George Washington, John Jay, John Marshall, and many others.
Although it will surprise many readers today, in a February 1804 memorandum to Treasury Secretary Albert Gallatin, President Jefferson explained the original practice:
“The Constitution has made the Executive the organ for managing our intercourse with foreign nations . . . . From the origin of the present government to this day . . . it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President.”
That same month, Chief Justice John Marshall (Jefferson’s political enemy) wrote in perhaps the most famous Supreme Court opinion in our history (Marbury v. Madison):
“By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion. . . . [W]hatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive.”
To illustrate the point, Marshall referred to the statute creating the Department of Foreign Affairs (now State), explaining that the Secretary’s duties were “to conform precisely to the will of the President.”
It was widely understood by the Framers that Congress couldn’t keep secrets, so early appropriations bills expressly provided: “[T]he President shall account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify . . . .” The Framers would have been shocked at the idea of congressional “intelligence committees” demanding sensitive national security secrets, which are a product of the post-Vietnam era.
Indeed, in Federalist No. 64, John Jay explained that sources of valuable foreign intelligence information would be willing to confide in “the secrecy of the president,” but not in that of the Senate or House, and thus the Constitution had properly “left the president able to manage the business of intelligence in such matter as prudence may suggest.”
In the 1990 case of United States v. Verdugo-Uriquidez, the Supreme Court noted that American presidents have sent armed forces abroad into harm’s way “over 200 times in our history” for the protection of citizens and our national security.
The precedents for Presidential military powers
Congress has formally “declared war” 11 times during five wars, and it has granted approval under statutory Authorizations for the Use of Military Force (AUMFs) another half-dozen or so times.
But the president’s power to use defensive force, or “force short of war,” has been recognized since President Jefferson sent two-thirds of the U.S. Navy half-way around the known world with instructions to “sink and burn” ships of the Barbary Pirates—and didn’t even formally notify Congress for more than six months. No one in Congress complained that Jefferson had acted improperly.
The kinds of war historically associated with formal declarations have been clearly outlawed by international law, and no country has formally declared war since the UN Charter entered into force in 1945.
Like the power of Congress to “grant Letters of Marque and Reprisal” given in the same sentence (which authorized private ship owners to seize the ships of an enemy on the high seas, but were outlawed by the 1856 Declaration of Paris), the legislative power “to declare War” is today an anachronism.
International law has not changed our Constitution, and if a President decided to violate our treaties by launching an all-out aggressive war or authorizing war by private merchant vessels, Congress would still retain its constitutional negative.
But neither is likely to happen. This is not to dismiss the important powers Congress does have related to hostilities, as the Commander in Chief has no military force to “command” unless first raised by Congress and funded by appropriations.
Speaking of the UN Charter, in recommending that it receive the Senate’s advice and consent for ratification, the unanimous Senate Foreign Relations Committee report discouraged any efforts to limit the president’s ability to use armed force pursuant to the Charter, as that might “violate the spirit of the United States Constitution under which the President has well-established powers and obligations to use our armed forces without specific approval of Congress.”
The War Powers Resolution as a “fraud”
Put simply, the 1973 War Powers Resolution was an unconstitutional fraud. The idea of an “imperial president” was a myth. As soon as the Korean War broke out in 1950, President Truman personally consulted with the bipartisan congressional leadership, asked to address a joint session of Congress, and had Secretary of State Acheson draft an AUMF in case it was necessary to send U.S. troops. But every congressional leader he spoke with discouraged him from doing so and assured him that he had authority to act pursuant to the Constitution and the Charter. Truman ultimately deferred to their views.
In Vietnam, if anything, Congress dragged President Lyndon Johnson into war—approving an AUMF by a 99.6 percent majority and more than tripling his request for appropriations. As the war escalated, appropriations in both Houses were approved by margins in excess of 90 percent. When LBJ first used force against North Vietnam in August 1964, his Gallup Poll approval rating shot up 58 percent. And had the War Powers Resolution been in force at that time, Section 2(c)(2) would clearly have affirmed the legality of the conflict.
Until this Administration, every president since Richard Nixon has viewed the War Powers Resolution as unconstitutional. By failing to follow that bipartisan tradition, President Obama has weakened his ability to defend his policies as lawful.
Indeed, the efforts of his administration to justify the 2011 Libyan operation were truly bizarre. Testifying before the Senate Foreign Relations Committee in June 2011, State Department Legal Adviser Harold Koh (who, as Dean of Yale Law School, had previously been perhaps the nation’s pre-eminent champion of the 1973 statute) noted that past presidents had largely ignored the War Powers Resolution, and cautioned about “narrow parsing of dictionary definitions” so as “to avoid unduly hampering future presidents . . . .”
Koh added: “Scholars will certainly go on debating this issue. But that should not distract those of us in government from the most urgent question now facing us, which is not one of law but of policy . . . .” Candidly, since Congress did not define the term “hostilities” in the Resolution, in some settings scholars might well disagree. But sending U.S. Predator drones into the airspace of a foreign country to kill that country’s soldiers with Hellfire missiles is not a close call.
If the 1973 statute were constitutional, being later in time it would be given preference under U.S. law by the courts over any inconsistent prior treaty (like the UN Charter).
This principle was established by the Supreme Court in the 1888 case of Whitney v. Robertson. But, as former Senate Majority Leader George Mitchell observed in 1988, the War Powers Resolution “oversteps the constitutional bounds on Congress’ power to control the Armed Forces in situations short of war and . . . . therefore threatens . . . the delicate balance of power established by the Constitution.” Two decades later, the prestigious bipartisan National War Powers Commission unanimously concluded that the 1973 statute is unconstitutional and should be repealed.
President Obama would have a stronger case were he to join in this strong and bipartisan consensus.
But, irrespective of any such declaration, the guiding principle was set forth clearly by Chief Justice John Marshall in Marbury: “an act of the Legislature repugnant to the Constitution is void.”
As a policy matter, there are compelling arguments both for getting Congress formally on board first and against using military force to “punish” Syrian President Bashar Aasad. As a question of international law, the unilateral use of force without Security Council authorization to “punish” even a notorious tyrant and war criminal finds little support. But, pursuant to the Constitution, the President clearly has the power to do so.
Professor Turner co-founded the Center for National Security Law at the University of Virginia School of Law in 1981 and has written two books specifically on the War Powers Resolution. He is a former three-term chairman of the ABA Standing Committee on Law and National Security. The views expressed are his own.
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