The U.S. Constitution gives Congress, and only Congress, the power to declare war. Of course, there’s plenty of ambiguity as to what is war, what is a declaration, and what actions the president can take without congressional authority.
That’s why Congress, three decades ago, passed the War Powers Resolution. The resolution clearly defines the division of powers here.
The president is allowed to “introduce United States Armed Forces into hostilities,” only “pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
That is, absent a congressional authorization [see (1) or (2) above], the president is allowed to initiate combat only if we’re under attack [(3) above].
In Syria, we are clearly not under attack. Congress hasn’t declared war on anyone since December 1941. So, the question is whether President Trump can point to some “specific statutory authorization” to launch missiles at Syria’s military.
Our other troops in Syria were presumably there to fight al Qaeda and the Islamic State, pursuant to the post-9/11 congressional war authorizations. But this was an attack on Syria’s regime, against which Congress hasn’t authorized military strikes.
However mistaken George W. Bush’s war against Iraq was, he got congressional authorization after a long, public national debate. I consistently criticized Barack Obama for going to war in Libya without congressional authorization. (On some occasions, Obama’s lawyers shamefully claimed the Tomahawk attacks on Libya didn’t count as “hostilities.”)
Now, President Trump seems to be doing to same thing in Syria — missile attacks without congressional authorization. The precedent of previous presidents’ illegal, unauthorized wars doesn’t make Trump’s unauthorized war legal. Regardless of the moral justification or the practical wisdom of this attack (and I doubt both), it’s deeply corrosive of the rule of law for a president to go to war through unconstitutional means.
Some conservative lawmakers, who actually care about the Constitution, are making this point on Twitter.
I haven’t read France’s or Britain’s “Constitution,” but I’ve read ours and no where in it is Presidential authority to strike Syria.
— Thomas Massie (@RepThomasMassie) April 14, 2018
These offensive strikes against Syria are unconstitutional, illegal, and reckless. The next speaker of the House must reclaim congressional war powers as prescribed in Article I of the Constitution. @SpeakerRyan has completely abdicated one of his most important responsibilities.
— Justin Amash (@justinamash) April 14, 2018
