Time will tell whether the American cruise missile strike against the Syrian air base will deter future Syrian government use of chemical weapons or even whether it was sufficient punishment for Assad’s gross and continuing violation of international norms against their use. But it’s clear that President Trump’s action will be seen in stark contrast to his predecessor’s regrettable pussyfooting in 2013 when he backed away from his own “red line” ultimatum over Syrian chemical attacks on civilian populations. In that respect, it will be understood, and correctly so, by many both here and abroad as a positive, if only first, step toward resurrecting American credibility.
But lost in the praise for the strike is the lingering constitutional question: On what grounds did the White House rest its decision to attack a nation with which we are not formally at war and which has not attacked us? Secretary of State Rex Tillerson’s statement that “if there are weapons of this nature available in Syria, the ability to secure those weapons and not have them fall into the hands of those who would bring those weapons to our shores to harm American citizens” is lame if it’s meant to satisfy the conditions for defensive preemption. Hitting the air base was no more likely to secure those weapons than taking out cell towers so Assad can’t call his bankers in London and Geneva.
The administration could turn to the 1973 War Powers Resolution, which, despite language that a president shouldn’t have the armed forces engaged in hostilities outside the territory of the United States without a declaration of war or specific statutory authorization, does appear to implicitly admit that, in practice, a president might take action on his own without congressional approval for up to two months. Yet conservatives and constitutional “originalists” have long doubted that the resolution made constitutional sense with its odd mixture of congressional overreach and, at the same time, acceptance of a form of executive prerogative. Plus, with the Supreme Court having gutted the resolution’s enforcement provision with its 1983 decision in INS v Chadha to deny Congress the use of legislative vetoes and presidents of both parties having consistently ignored the act as binding, the resolution, while still on the books, is for all intents and purposes a dead letter. In short, it’s doubtful that the Trump administration will somehow use the resolution as its legal grounds.
More likely, the Trump legal team will turn to more recent precedents, such as the 1999 air campaigns against Yugoslavia (for which there was no congressional authorization or even a UN Resolution of support) or the 2011 air campaign against Libya (for which there was no congressional authorization and which was said not to trigger the War Powers Resolution because of a sophistic argument that the multi-month air war against Gaddafi’s regime did not rise to the level of “hostilities” as understood by the law.) Both precedents justify the president’s use of force as necessary to sustain “important national interests.” And, indeed, this is precisely where the administration appears to be headed with Trump saying last night that it was a “vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons” and that Syria’s use of chemical weapons “deepens” the refugee crisis and the region’s destabilization.
No doubt responding forcefully to the Assad government’s use of chemical weapons against its own civilian population is in our national interest. The international norm against such barbaric behavior needs enforcement, and, unless Washington leads, there will be no enforcement. And the impact of the refugee crisis has had and is having a serious strategic impact on our allies. But, that said, is there also any doubt that the administration could have gotten an authorization from Congress to take the action it did? And, if the question was one of urgency and surprise, the administration can and should go to Congress now, report what action it has taken, and ask for a resolution of approval.
Moreover, this constitutional fastidiousness is especially important to maintain in the case of President Trump, whose knowledge of the Constitution appears particularly thin and whose behavior as an executive in private life doesn’t give one the greatest confidence in his sense of limits. Resting on broad and undefined arguments about “the national interest,” the war-making precedents of 1999 and 2011 have become a virtual license to engage in hostilities whenever and wherever a president decides. Members of Congress should care as much about the grounds on which President Trump justifies the use of his power as commander-in-chief as for what ends he uses that power.
