Social media lawyers and constitutional law enthusiasts heavily debate war powers any time a president initiates any kind of military action, so a basic lesson in the Constitution is timely after President Trump’s strike on Syria last week. The question boils down to this: Did he have constitutional authority?
Here is your cheat sheet:
Constitutional question = can he?
Political question = should he?
As my constitutional law students will readily recognize for their final essay exam in my class, the question of constitutional authority must be separated from the political question for proper analysis. This means the Constitution is not concerned with whether the president should conduct a specific military action, but whether he can. We can all debate all day whether a military action was wise, whether the U.S. should be involved, whether the act is justified under a just war theory, etc., but these are all questions of politics.
The Constitution gives each branch of federal government specific, limited powers to act. So when we use the term “constitutional” to characterize a government action, what we’re really saying is that a specific branch of government has a specific power. Thus, concerning acts of war initiated by a president, it doesn’t matter to constitutional analysis whether we agree with the act. It matters whether the president can or cannot act.
Think of this like a chess game. Different chess players may move a bishop or rook at various stages of the game for various reasons according to their own strategies. But all chess players are bound by the same rules: bishops must move diagonally and rooks must move horizontally or vertically. Powers to move remain consistent; players’ control of the moves changes with each player.
Constitutional powers work in exactly the same way. Presidents and Congress are all bound by the same rule of law: the Constitution. How and when they should execute their powers is basically what we call politics. You may disagree with a certain chess player’s choice of movements, but as long as they’re obeying the rules, they are controlling the pieces. This is also why elections are extremely important. Who we vest with constitutional powers matters because those political players may or may not play according to our political preferences. Importantly though, they must play within the rule of law.
So to analyze and answer our current constitutional question, Article I, Section 8, Clause 11 of the Constitution grants power to Congress to “declare war,” and Article II, Section 2 grants without exception the president power of commander in chief of the U.S. military (and of the militia of the several states when actually called into service for the United States — and this clause grants the president power to direct the National Guard when it is called into service). This separates the power of declaring legal status of war from military action as commander in chief.
Much of the confusion surrounding when a president does and does not need “congressional approval” centers on what a “declaration of war” means. A declaration of war changes the legal status relationship between the United States and other nations, and also triggers other statutory provisions that changes the relationship between the federal and state governments, and even our government and its citizens in some very important ways. A formal Declaration of War (similarly to the Declaration of Independence) informs the world of a change in legal status — a state of war now exists between our nation and other nation(s).
Additionally, a Declaration of War would allow, among other things, a draft to be imposed, civilian industry compliance with federal laws during wartime, and other federal impositions that the Founders intended Congress to deliberate on before imposing on the states and citizens. This makes sense in context with Congress’s other Article 1, Section 8 powers, such as commerce, immigration, and other deliberative decisions that affect the whole union.
But a formal Declaration of War is not required under Article II for the president’s constitutional power to act as commander in chief. He can order U.S. military forces into action without congressional approval if, in his sole judgment, he should. This applies the same way to presidents prior to Trump and the rules also apply the same way to Trump. The rules of chess don’t change depending on the player. Only the strategy and outcome changes.
Much has been made of how the War Powers Act plays into all of this, and from a purely constitutional analysis standpoint, whether or not that act is constitutional (meaning: did Congress have constitutional power to enact that legislation, whether or not we agree with it?), it’s irrelevant. If the War Powers Act is unconstitutional, then it’s legally similar to a quitclaim deed — Congress is conveying power to the president that it doesn’t have in the first place, so it’s irrelevant. I can’t give away something I don’t own. Neither can Congress.
If the War Powers Act is constitutional then it just becomes another basis that a president can turn to to justify military action. But his commander in chief power specifically enumerated in Article II is sufficient to justify military action anyway. However, the War Powers Act restricts presidential powers further than Article II actually provides, and presidents could challenge its legitimacy on this basis. Congress has no power to restrict another branch’s power, similarly to how the Supreme Court has no power to strike down a law of Congress or of the states, or a presidential executive action, as “unconstitutional” simply because they disagree with it politically. (See, e.g., Obergefell v. Hodges, and the four dissenting opinions.)
Objections to this analysis typically come either in the form of political objections, which have already been dispensed with, or by way of contemporaneous quotations from the Founders. Those quotations are helpful to an extent (very similarly to legislative declarations), but a proponent must be very careful not to quote out of context and must also recognize that the Constitution is a legal document and quotations are not. Moreover, I have not been presented with a quotation that actually goes against the distinctions made between Article I and Article II powers as I have described them.
Usually the proponent of a quotation is doing one of three things: (1) taking it out of context (like the famous “separation of church and state” reference from Jefferson that’s nowhere in the text of the Constitution); (2) the person misunderstands the quotation (usually because that person is not proficient in legal analysis); or (3), the quotation is so broad and generalized that the person is attempting to use it to prove a point other than the narrow question at hand.
For example, James Madison said in a letter, “In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.” Madison’s comment in no way contradicts anything I have discussed thus far. The question of war or peace as a legal status is absolutely confined to the legislature. The president cannot declare war unilaterally. It literally takes an act of Congress.
But to apply this Madison quotation to Article II commander in chief powers for the purpose of restricting them would be to misunderstand the legal analysis, and also forget to read the rest of Madison’s letter and its context, which was a series of letters between Madison and Alexander Hamilton on whether President George Washington’s April 22, 1793, “Neutrality Proclamation” usurped congressional authority under Article I, Section 8 and actually amounted to a decision on the legal status of a declaration of war, absent legislative deliberation and action.
It’s fascinating that even the very Founders who wrote the Constitution and signed it still had debates over the separation of powers similar to ours today. But these centuries-old debates and our modern ones must be understood in context, not reduced to tweeted quotes in defense of a political perspective because a google search showed a top result. That kind of argument is unfortunately all over social media and is profoundly ignorant. And we must also realize that unlike our commander in chief, unless we have his level of security clearance, we’re advising on something as important as military action almost completely in the dark.
We should be informed and debate which chess move is best according to a full understanding of the binding rules and as much information as we can know. Everyone has a political opinion. But do you really understand the rules?
The bottom line: Trump is commander in chief. He can direct the military. Full stop. Now let’s debate the politics of what he should do.
Jenna Ellis (@jennaellisorg) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is an attorney, a fellow at the Centennial Institute, a radio show host in Denver, Colo., and the author of The Legal Basis for a Moral Constitution.
