It has been roughly two months since President Trump delivered an address to explain why he decided to launch a limited military operation against Bashar Assad’s regime in Syria. The United States and the civilized world, Trump declared, could not stand by and allow a murderous dictator to drop chemical munitions on his own people. There needed to be some accountability, and according to the White House, the only way to deliver that accountability was for Washington and its allies to launch military strikes.
While the speech may have been emotionally satisfying, Trump failed to address the legality of the operation. Why, for instance, did Trump believe that using military force against another government — however despicable that government is — without expressed authorization from Congress was a constitutional action? Thanks to a recently released legal memorandum from the Office of Legal Counsel, we now have that legal rationale — and for those who cherish the very system of checks and balances that the American republic was founded upon, the OLC’s opinion is one more terrifying step toward an unrestrained executive branch on matters of war and peace.
The U.S. Constitution and the 1973 War Powers Resolution could not be more clear: when sending American service members to conflict overseas, the men and women who compose the legislative branch are the sole decision-makers. Unfortunately, this very basic fact is getting lost in the noise and paper-flow of legal briefs drafted by executive branch lawyers — all of which misleadingly talk about the commander in chief’s national security powers as if the office of the presidency was a monarchy.
Over a period of decades, presidents have concocted clever legal cases that treat congressional prerogatives on issues of war as largely irrelevant or optional. Whether it concerns the 1989 U.S. invasion of Panama, the U.S. and NATO air campaigns in Bosnia and Kosovo, the 2011 bombing in Libya, or the 2017 and 2018 airstrikes against the Syrian government, attorneys working for the president have opined a grossly expansionist interpretation of the president’s war powers.
We are led to believe that if an operation can be described as below the threshold of full-blown hostilities, and if the action can be connected to a U.S. national security interest (however vague that interest is), the president is legally and constitutionally permitted to authorize military force without statutory approval from America’s elected representatives in Congress. The legal reasoning is a complete and utter refutation the War Powers Resolution and Article I, Section 8 of the Constitution, both of which unequivocally place the power to declare war as a legislative power.
There are circumstances, of course, when the president does have the authority to use force without congressional authorization. If “the United States, its territories or possessions, or its armed forces” are attacked, the president — as commander in chief of the U.S. Armed Forces — can retaliate forthwith. In a situation such as this, the president reserves the power to promote and defend the American people without first approaching Congress for statutory authority.
It is a highly circumscribed exception spelled out in the War Powers Resolution, one that is far below the unconstrained and unconstitutional arguments offered by OLC’s across numerous administrations of the president’s authority to deploy the armed forces in situations that impact the national security interest. The former affords the president with the ability to act in narrowly tailored circumstances; the latter is an interpretation so large and unrestricted that the executive branch could theoretically order military action against any country or entity on the planet without first consulting and attaining the approval of the American people through their elected representatives in Congress.
The Trump administration’s legal memorandum follows on this well-beaten path. Ultimately, the reasoning peppered throughout the OLC memo is a recipe for an executive branch run amok. Taking this legal rationale to the extreme, the president would be able to launch airstrikes or deploy tens of thousands of U.S. troops into any humanitarian conflict around the world that has the mere potential of upending regional stability. And, because such deployments would be permitted under the president’s Article II powers, the legislative branch would have no option but to blindly accept it. Indeed, if the White House had its way, Congress would have no role in the war-making process whatsoever. Rather than being an independent and co-equal branch of government, the legislature would be relegated to a ceremonial body of no consequence.
This is — to say the very least — not how the constitutional system of the American republic is supposed to work. Nor is it how the founders of the republic established the system when they were deliberating the nation’s founding document at the constitutional convention.
If lawmakers are upset about the Trump administration’s legal case, they have only themselves to blame. Year after year, legislators have treated their constitutional authorities in declaring war or authorizing force as a political headache best to be avoided rather than the weighty duty that it is. Prospective war votes are too often viewed as a threat to political careers especially following the disaster in Iraq, a big reason why the U.S. continues has twisted a narrowly tailored 2001 War Resolution against al Qaeda and the Taliban into a catch-all for practically any Sunni terrorist group on the planet.
Members of Congress are at a critical crossroads. They can either continue playing it safe by deferring to the executive branch to the detriment of their constituents, or they can finally begin to correct the alarming imbalance between the executive and legislative branches on the most monumental subject any nation can take. The first is precisely what our Constitution was established to preclude. The second is what people across the country support and indeed expect.
Daniel DePetris (@DanDePetris) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a fellow at Defense Priorities. His opinions are his own.
