Make no mistake: President Trump’s airstrikes against Syria were unconstitutional.
Military action may well have been justified from a moral standpoint. The Assad regime’s war on its own people and its use of chemical weapons required a response, arguably including a retaliatory strike to deter further such attacks. Inaction, as much as action, has profound human consequences. There is a case to be made that America should have taken military action against Assad in 2013, or even as early as 2011, in order to protect innocent Syrians from their own government.
But from a legal standpoint, there can be no doubt that Trump’s Tomahawk strike on the Syrian regime was a violation of the U.S. Constitution. And to let it pass, especially given this president’s authoritarian tendencies, is to invite grave danger. This act of war might be one that some are inclined to cheer. But if the principle is conceded, or the precedent set, that Trump (or any president, for that matter) can take our country to war with another — on his own, without congressional authorization, in violation of the Constitution — then there will be nothing to stop him from initiating any further wars he wants, against any foes he wants, at any time he chooses, based on his own good judgment (or lack thereof). And that should frighten Americans of all political persuasions.
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The phrase “declare war” in the Constitution was universally understood to mean the making of the decision to initiate a state of war with another nation, power, or force. The word “declare” was deliberately and carefully chosen at the Constitutional Convention, after an earlier draft that would have granted Congress the power to “make” war was rejected. Two reasons for the change appear in the records of the Convention’s debates. First, the delegates wished to preserve the traditional executive power to respond to, repel, or defend against sudden (or imminent) attacks on the nation. The right to national defense would remain with the executive branch. Thus, if another nation were to launch an attack against the nation — that is, if someone else were to start a war with the United States — the president would not need to wait for Congress to act before responding with force. Second, the delegates thought that “declare” was a better word choice than “make,” which could be mistaken to suggest that it was Congress’s job to conduct war.
The phrase “declare war” in the Constitution was universally understood to mean the making of the decision to initiate a state of war with another nation, power, or force.
In all respects, the debate reveals the consensus understanding that the president would not have the power to initiate a war without congressional approval. Virtually everybody in the founding generation — Washington, Adams, Jefferson, Madison, Hamilton, Jay, and countless others — agreed on this principle. Nothing in the text of the Constitution; nothing in its structure or logic; and nothing in the contemporary historical record supports the unilateral power of the president to take the nation into a new state of war by himself. The most that can be said is that the president, as commander-in-chief, retains the executive power to respond to actual or threatened attacks, to rescue American civilians or troops when they are in imminent danger, and to take actions to preserve, protect, and defend the nation from cataclysmic harm in an emergency. There are borderline, arguable situations in each category, to be sure. But offensive military action against a nation with which we are not already engaged in hostilities, and involving none of these exceptional situations, falls completely outside the scope of the president’s legitimate constitutional authority.
I know what you’re thinking: Other presidents have violated this constitutional arrangement in much the same way as Trump. You’re not wrong. There have been numerous other instances where a president unilaterally initiated a state of war in the absence of any of the exceptional circumstances described above: The Korean conflict, Clinton’s Kosovo bombing, and Obama’s air war on Libya are just a few examples. Not all of these were “bad” wars, either as policy or from a moral standpoint, but they were all “bad” in the sense of being constitutionally improper.
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As such, they must not be said, in retrospect, to have functionally “amended” the Constitution. Article V prescribes specific, exclusive procedures for making constitutional amendments; a series of unchecked constitutional violations is not one of them. This should be an absolutely bedrock principle for anyone who cares about the Constitution: Repeated violation of the Constitution does not change its meaning or alter its binding character as the fundamental law of the land. Unconstitutional presidential military actions, even if they go effectively unchecked by Congress or the courts, are still unconstitutional.
What is to be done, then? This is the question that serious members of Congress, Democrats and Republicans alike, must contemplate in the days ahead. Possibilities include conditioning military appropriations on obtaining authorization for the use of offensive force, providing for automatic funding cuts in the event of a violation, reasserting (or reinvigorating) the War Powers Resolution, or even threatening impeachment (and meaning it).
One thing is for sure, though: Legislators shouldn’t sit on their hands just because they might approve of Trump’s unconstitutional military strike this first time. If Congress does not act now — if it fails to enforce, through all the legislative powers at its disposal, the Constitution’s true allocation of responsibility for declaring war — it will practically invite Trump to initiate wars by unilateral military action whenever he feels like it.
And we should all agree on the dangers of that.
— Michael Stokes Paulsen is University Chair and professor of law at the University of St. Thomas, in Minneapolis. He was an attorney-advisor in the Office of Legal Counsel of the Department of Justice under President George H. W. Bush. He is the co-author, with Luke Paulsen, of The Constitution: An Introduction, recently reissued in paperback.
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