Asked about the legality of the attack against Syria, Sean Spicer responded that “Article II of the Constitution is pretty clear.” And while he’s correct that the Founders wrote with precision, the White House flak is wrong about what that passage actually means.
If he’d stop dodging for a moment, Spicer could start clarifying. Either like the Founders, Trump believes that war requires Congressional authorization. Or like Obama, Trump believes that presidents can unilaterally rain down Tomahawk hellfire on a whim.
Unfortunately for Spicer, Article II, Section 2, Clause 2 doesn’t answer this question. That clause explicitly states that “the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” It’s more of a wartime job description than presidential license to militarily meddle.
The founding politicos weren’t silent on this issue. Article I Section 8, Clause 11 provides the clarity that Spicer seeks. According to that passage, it’s the job of Congress, not the president, “to declare a war.” As commander-in-chief, the president moves only after the legislature beats the drums of war.
That’s not some sort of tortured libertarian interpretation of the Constitution. It’s not a hackneyed twisting of first principles. Instead, it’s the explanation offered by none other than George Washington.
“The Constitution vests the power of declaring war with Congress,” President Washington wrote in 1793, “therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”
To avoid misunderstanding, Congress codified this understanding two centuries later.
Embodying the words of Washington, the War Powers Resolution of 1793 states unequivocally that the president may “introduce United States Armed Forces into hostilities” only in the case of “(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.”
No matter how hard one looks, there’s nothing in the law allowing for foreign conquest against really mean dictators or making the world safe for democracy. According to the law, barring imminent threat, the president can only move with Congressional permission.
That Syrian children were suffocated by poison dropped from the sky by a murderous dictator does nothing to change this fact. By law, Trump must seek authorization first and shoot later. At least that’s how it’s supposed to work.
For the better half of the last century, presidents have been getting cute with reality to circumvent Congress. When President Truman sent American troops to fight the Korean War, he called it “police action.” And when President Obama helped topple dictator Muammar Gaddafi in Libya more recently, he called it “kinetic military action.” After addressing the humanitarian crisis in Syria with cruise missiles, it’s obvious that Trump plans on following suit.
And that’s fine. There’s an argument for allowing the president to unilaterally seek out and destroy evil. It’s just not a constitutional one. If Spicer really wants to be clear, the press secretary will offer a different justification for going to war because he’s certainly not going to find it in Article II.
Philip Wegmann is a commentary writer for the Washington Examiner.
